Saturday, January 3, 2009

Nice Guys Finish ... First?

I was happily surprised to see that Michael Bennet has been tapped to replace Ken Salazar as a Senator from Colorado. I knew Michael from law school and working in DC thereafter, and he always struck me as very smart, able, and all-around impressive. What makes his appointment so surprising is that he is so tremendously ... nice. People like that aren't supposed to get ahead, least of all in politics. They're the ones who get stepped on by the ambitious, ruthless climbers who reach the top (or so the movies suggest). In most every way Michael's personality is totally unlike the stereotype of an average politician. For this reason, I would never have expected him to run for the Senate on his own. I am not saying that because he is nice he will be a better Senator, nor am I suggesting that anyone should support him on that basis. But I do find it striking that he was chosen. I also think it is not coincidental that he was appointed, rather than having to run for the office.

This also raises larger questions about differences between the sort of people who get elected and those who get appointed. I recall that, after a couple of scandals in Arizona (remember AzScam?) resulted in the appointment of a bunch of state representantives to replace those who were caught in the scandals, someone analyzed the appointed legislators versus the elected ones and found the appointed superior on most every metric (no, I no longer recall the details). This is most relevant (post-17th Amendment) to the selection of state officials, notably judges. The variation among states is wide, with some (e.g., Texas) electing almost everyone above dogcatcher, others relying heavily on appointments, and still others having appointees who then run for election when their term is up (the closest analogue to Michael's position). Co-conspirator Eric and my colleague Mitu Gulati have done some work comparing judges who are subject to different kinds of appointments, though I can't recall which of their papers are still in the "Don't cite or circulate this" stage.

Anyway, I guess that sometimes nice guys do finish first.


No Double Standards Here:

The government, fed up with rebel attacks and failed diplomacy, and rejecting international calls for further negotiations, is invading a densely populated terrorist stronghold, vowing to crush the terrorists, who claim to represent a liberation movement of an oppressed ethnic group, once and for all. The United Nations has rushed to condemn the government in question, the media is highlighting every casualty and blurring the line between civilian and military casualties by including both in its constant updates of the death count, anti-government rallies have broken out throughout the world, and the leaders of the government are being accused of war crimes.

Not Israel and Hamas, but Sri Lanka and the Tamil Tigers, a conflict that has claimed tens of thousands of civilian lives, and has displaced hundreds of thousands more, all in recent years. Oh, yeah, one other dissimilarity; the last sentence of the previous paragraph is completley untrue vis a vis the Sri Lankan/Tamil Tiger conflict.

Thanks to Eugene Kontorovich for informing me about the current action in Sri Lanka, which I had somehow managed to miss...


Kagan, Sullivan Reported to Be Considered for Obama SG Slot: Bloomberg reports, via Leiter's Law Reports:
  The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama’s voice at the U.S. Supreme Court, according to people familiar with the selection process.
  Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the “tenth justice.” . . .
  Kagan became a top candidate for solicitor general after being passed over for deputy attorney general, a slot set to go to Washington lawyer David Ogden, people familiar with the selection process said.
  I don't know either Kagan or Sullivan well, but from what I know I would think either would make an excellent Solicitor General. Sullivan has more litigation experience: The article notes that Sullivan has four prior Supreme Court arguments, while Kagan has had none. Indeed, if the Westlaw ALLFEDS database is correct, Kagan has never had her name on a Supreme Court merits brief, and the last federal appellate brief with her name on it was in 1990 when she was an associate at Williams & Connolly.

  At the same time, my sense is that this relative lack of practical experience is not so unusual when an Administration picks an academic as SG. Very few law professors have notable litigation experience, and those that do usually have most of their experience from the period before they became academics. When Harvard Law School Professor Charles Fried was picked in the Reagan Administration, for example, his first argument to any court ever was as Solicitor General. [UPDATE: Aptly named commenter Corrections points out that Fried had his first argument earlier in the year he became SG, when he was briefly a Deputy SG.] And even when an Administration picks a practitioner, a lack of Supreme Court argument experience is not so uncommon: My recollection is that Seth Waxman had never argued before the Court when he was named SG in 1997. In any event, it will be very interesting to find out who Obama selects.

Gaza and International Law:

This seems to be an opportune time to link to this comprehensive, scholarly analysis of international law and the conflict between Israel and Hamas, written before the current fighting, but still quite relevant. The authors are attorney Justin Reid Weiner and Professor Avraham Bell.

(I'm not opening comments, because it's likely that only a tiny fraction of them would actually address Reid and Bell's paper. Feel free to email me directly if you know of any substantive critiques of this paper, or have one of your own.)

It's a Wonderful Copyright Life:

Interesting article by Ron Rychlak on the "Christmas Classic that Almost Wasn't" and how the lapsing of the copyright on "It's a Wonderful Life" allowed the film to become an often-viewed icon--and how its copyright has been reasserted since.


The Gaza Conflict and the Limits of International Law.

A number of people have already accused Israel of breaches of international law, and even war crimes, going so far as to argue that an international tribunal should be established and assigned the task of trying suspected war criminals. If I had a dime for every imagined war crimes tribunal that never came to fruition…. The international law issues are serious but largely irrelevant, however.

Others (including Kevin Jon Heller and Marko Milanovic) have set out the issues well. Here are the high points:

1. Jus ad bellum. Gaza is not a state. It’s not clear what it is—occupied territory? Mandate? If it’s not a state, the UN charter does not forbid an attack. Even if it were, the UN charter would not forbid an attack as long as Israel’s attack is in self-defense—which it appears to be, so far.

2. Jus in bello. Can there be a war between a state and a non-state entity? Yes! And most people think the regular laws of war apply. The laws of war forbid the deliberate killing of civilians, but so far no one has proved that Israel has deliberately killed civilians. That leaves the proportionality rule, which bars an attack that causes civilian casualties (or property damage) that are “disproportionate” to the attack. Unfortunately, no one knows what proportionality means. Can you drop a bomb on a Hamas leader that might or will kill a nearby civilian? Two civilians? Ten? A thousand? Does it matter how important the leader is? Whether he has taken refuge in a densely packed area? There are no settled answers to these questions.

3. Human rights. Ideally, the Israelis enter Gaza and arrest the rocket shooters and their leaders, try them, and convict them if they are guilty. In practice, this is impossible. Human rights law does not prohibit the use of violence when ordinary law enforcement practices are inadequate.

So where does this leave us? There is no evidence that Israel has violated international law, though perhaps it has, or will. So why so many calls for investigations and tribunals for Israelis? And what of Hamas? Why doesn’t anyone want to set up a tribunal for those guys?

This brings us to the question of relevance. No one cares whether Israel has violated international law or not, except for a handful of law professors. For its more mainstream critics (as opposed to those who think it has no right to exist), Israel has acted wrongly by mistreating Palestinians over decades, and has only itself to blame for Hamas’s rocket attacks. It shouldn’t have squeezed Hamas in the first place; it ought to negotiate a settlement with Hamas now. On this view, Hamas is just another national liberation movement, like the African National Congress under Apartheid, which can’t be blamed for using violence to overthrow its oppressors. For Israel’s defenders, Israel has every right to defend itself against a bunch of violent terrorists.

The glory of the laws of war was the separation of jus ad bellum (the laws that govern the conditions under which one goes to war) and jus in bello (the laws that govern conduct during a war). Your soldiers must comply with jus in bello rules regardless of whether the war itself is legal or not, or morally justified or not. But people do not think this way. The bombing of Dresden and London were not moral equivalents in historical memory: Dresden was payback, plus it helped weaken an infinitely more odious government. As so often happens, when law and people’s moral intuitions diverge, people ignore the law. When the law is international law, and so there is no independent enforcement machinery for implementing the law, governments that are sensitive to public opinion will ignore the law and try to enforce public opinion.

People around the world see the pictures of smashed houses and bleeding children and, rightly or wrongly, blame Israel. European governments worry about their restive Muslim populations. Israel has law on its side in this battle but that does not matter because it is losing the public relations war and, one way or another, Israel will find the law closing in on it because the law is what the other states say it is. In the long term, this could mean diplomatic isolation; Israel is dangerously dependent on the support of one fickle nation that is looking for a way to reestablish its international bona fides.


Mortgage Walkaways Story Clarification:

There is an Associated Press story that has been running around the country on mortgage walkaways and state anti-deficiency laws. Here is the long version of the story. The story accurately quotes me but then provides a list of states that the reporter on the story claims are the "full list" of states that have anti-deficiency laws and the positioning of the list in the story makes it look like the reporter got the list from me. He did not. And based on my understanding, the list provided is highly inaccurate.

I've received several emails from people around the country asking about this list, and in particular, the inclusion of Florida on the list. Let me emphasize--the reporter did not get that list from me and based on my knowledge the list that is provided is incorrect. Based on my understanding, there are multiple errors both of inclusion and omission on the list. Please do not rely on the list provided in the story and if you have any questions you should check with a real estate specialist in the state in which the property is located (this would seem to be obvious, but I had one lawyer contact me who said she had been rebuked by a client who was upset and said that the lawyer was "obviously incompetent" because she didn't even know what was in the newspaper).

And please don't attribute this list to me--it isn't mine.


Friday, January 2, 2009

Chief Justice John Roberts Renews But Scales Back His Call for a Judicial Pay Increase:

Chief Justice John Roberts has renewed his call for a federal judicial pay increase in his 2008 Year End Report on the Federal Judiciary. This is hardly a surprise. Roberts and his predecessors have been calling for a pay increase for many years now.

I criticized the Chief Justice's earlier arguments for a pay increase in a series of posts in 2006 and 2007 (in reverse chronological order, see here, here, here, and here). Nothing in the Chief Justice's most recent report leads me to change my mind. I still think that there is no evidence that salaries are too low to attract and retain quality judges and that total judicial compensation is actually quite high once we take account of the non-salary benefits of being a federal judge, including generous pensions, prestige, and excellent hours and working conditions.

However, it's worth noting that this year's report is a lot less hyperbolic than its predecessors. The 2006 report (which I criticized in this post) claimed that low judicial pay is causing a "constitutional crisis." Last year's report argued that failure to increase judicial pay might imperil "the critical role of our courts in preserving individual liberty, promoting commerce, protecting property, and ensuring that every person who appears in an American court can expect fair and impartial justice." This year's report largely avoids such rhetorical excesses. Indeed, the Chief Justice now emphasizes that "the judiciary remains strong" and that it "is resilient and can weather the occasional neglect that is often the fate of those who quietly do their work." Also, the 2006 report argued for a "substantial" pay increase, while this year's merely calls for "judicial compensation that keeps pace with inflation." I actually agree that adjusting judicial pay to inflation might be a desirable reform (as I noted in my very first post on this subject), though I doubt that the consequences of failing to enact this change will be anywhere near as dire as the Chief Justice predicts. Unfortunately, the report does not entirely make clear whether the Chief Justice is asking Congress to adjust judicial pay to inflation going forward or whether he is still urging Congress to raise judicial pay to the level it would be at had it been adjusted for cost of living increases throughout the last 20 years (as he advocated in the 2007 report). I favor the former reform, but believe that the latter is unnecessary.

It is pretty much inevitable that the Chief Justice will argue for increased judicial pay. After all, representing the interests of his fellow federal judges is more or less part of his job. Given that constraint, I think that this year's report demonstrates a praiseworthy rollback of the excessive demands and rhetoric of previous years.

UPDATE: For readers who may be interested, current salaries for federal judges are as follows:

Chief Justice of the Supreme Court: $217,400

Associate Justice: 208,100

Circuit (Court of Appeals) Judge: 179,500

District (trial) Judge: 169,300

Note that these figures don't include non-salary compensation, such as an excellent health care plan and extremely generous pension benefits.

Related Posts (on one page):

  1. Chief Justice John Roberts Renews But Scales Back His Call for a Judicial Pay Increase:
  2. Judicial Pay: Another Perspective

Additional Briefing On Motion to Dismiss in Lori Drew Case: Two weeks ago, I posted this Supplement to the Rule 29 Motion to Dismiss in the Lori Drew case. Here's some additional briefing on the motion, hot off the word processors. First, on Tuesday the Government filed this Response to our Supplement. And just a few moments ago, we filed this Reply to the Government's Response.

Kinda Cool: Malcom Gladwell's new book, Outliers, has a section (pages 139-151) on Louis and Regina Borgenicht, eastern european Jews who came to the United States in 1889 with nothing and who became quite successful in the garment industry in the Lower East Side. Kinda cool to me, at least, as they are my great-grandparents.

Cigarette Manufacturers Not Liable for Not Making All Cigarettes "Light":

So New York's highest court held Dec. 16 in Adamo v. Brown & Williamson Tobacco Corp., and I think the court got it quite right (some paragraph breaks added):

Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine... [But] plaintiffs failed to prove an essential element of their case: that regular cigarettes and “light” cigarettes have the same “utility.” The only “utility” of a cigarette is to gratify smokers' desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes....

Here, plaintiffs presented evidence from which a jury could find that light cigarettes — cigarettes containing significantly lower levels of tar and nicotine — are “safer” than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain “functional.” The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function.

Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes — indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes.

It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has. A cigarette is a different kind of product from the circular saw in [an earlier case], whose function was to cut wood, or the molding machine in [another case], whose function was to melt and form plastic.

We find an apt analogy, as the Appellate Division did, in Felix v. Akzo Nobel Coatings (262 A.D.2d 447, 692 N.Y.S.2d 413 [2d Dept 1999]). The product involved in Felix was a quick drying lacquer sealer made from a highly flammable solvent base. The plaintiff argued that a safer design was “feasible,” because a sealer can be made from a water base, but the plaintiff's expert “admitted that the water-based products take hours longer to dry.” The court in Felix found that this “functional difference” defeated the plaintiff's case; the plaintiff failed to produce evidence “that there was an alternative, safer design” serving the same function. Similarly, here plaintiffs' case fails because plaintiffs failed to show that light cigarettes are equivalent in function, or utility, to regular ones.

Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes' “utility.” A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless.

But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.

Judge Pigott dissented, agreeing that a design is negligent only if the safer alternatives would be equally functional, but reasoning that the defendants should bear the burden of proving that the safer alternatives wouldn't be "as satisfying"; he would have remanded "for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette."


Thursday, January 1, 2009

The Honeymoon Period:

Three year old Natalie, playing with one of her favorite toys: "Daddy, who bought this for me?"

Me: "I think I did."

Natalie: "No, I don't think so."

Me: "Yes, I think it was me."

Natalie: "No, it was that guy."

Me: "Who?"

Natalie (excitedly): "That guy, the guy!"

Me: "Which guy?"

Natalie: "Barack Obama."


Argument for Why the Senate May Decline To Seat Roland Burris:

Akhil Reed Amar and Josh Chafetz make it; the entire piece is worth reading, but here is what strikes me as the heart of the argument:

Each house of Congress is "the Judge of the Elections, Returns, and Qualifications of its own members," according to Article 1, Section 5 of the Constitution. At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official.... [T]he Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen....

To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons — because one refused to "pay to play" early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment....

Nor does it matter, from the Senate's point of view, that Blagojevich hasn't yet been convicted. In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption....

I have a very high opinion of Amar and Chafetz, but here I think they're mistaken, and I think Brian Kalt (Concurring Opinions) has it generally right: The initial misconduct on Blagojevich's part doesn't carry over to a bribe-free appointment of the person he ultimately appointed. In any case, though, read Kalt's argument — family duties keep me from blogging further on this myself.

UPDATE: Ann Althouse has more.

FURTHER UPDATE: Michael Rappaport (The Right Coast) likewise disagrees with Amar & Chafetz:

Consider the following analogy. Amar and [Chafetz] write: "At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him." That is true, but if the same state legislature produced another candidate, without any evidence of bribery, the Senate should not be allowed to refuse to seat him.

Related Posts (on one page):

  1. Left/Right Consensus: Seat Burris:
  2. Argument for Why the Senate May Decline To Seat Roland Burris:

Judicial Pay: Another Perspective

Click here for the source and further explanation.

For Justice Roberts' view, see here.


Happy New Year!

To roughly translate how we say it in Russian, "to the new year, to the new happiness."


Karl Rove:

Several people reported that Karl Rove quoted our Blagojevich / Powell v. McCormack blog post on Hannity & Colmes; and, sure enough, here it is. Cool.


Wednesday, December 31, 2008

2008 Year-End Report on the Federal Judiciary: It's available here, just in time. From the Chief Justice's report:
I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. . . . Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years. One year later, Congress has still failed to complete action on that crucial remedial legislation, despite strong bipartisan support and an aggregate cost that is miniscule in relation to the national budget and the importance of the Judiciary’s role. To make a bad situation worse, Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even though it provided one to every other federal employee, including every Member of Congress. Congress’s inaction this year vividly illustrates why judges’ salaries have declined in real terms over the past twenty years.

Given the Judiciary’s small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the Judiciary’s modest petition: Simply provide cost-of-living increases that have been unfairly denied! We have done our part—it is long past time for Congress to do its.
Thanks to Howard Bashman for the link.

  Happy New Year, everyone (which I mean in an entirely inoffensive way).

Sixth Circuit Withdraws Opinion Striking Down Traffic Law on Vagueness Grounds: I blogged yesterday and the day before on United States v. Davis, the Sixth Circuit case handed down on December 19th that had invalidated a Michigan traffic law on the ground that it was unconstitutionally vague. Today the Sixth Circuit withdrew the opinion: The brief order withdrawing the opinion is here. This means that the old opinion is "off the books," and that at some point the Sixth Circuit will issue a new opinion in the case.

Human Shields in Gaza:


The IDF has made frequent use of what is known as "knocking on the roof": Militants are warned by phone when a residential building used to store arms will be bombed, and told to vacate the premised together with their neighbors. The weapons caches are hit only after the residents leave.

Hamas has tried placing civilians on the roofs of such buildings when the phone call warning comes in. In these cases, the IDF fired antitank missiles near the building, and in a few cases the residents left.

Thanks to reader Nathan Hecht for the pointer.

I've heard of soldiers, including Israeli soldiers, using the other side's civilians as human shields to protect themselves. But it takes a special kind of depravity to use your own civilians as human shields to protect weapons stores.


Testing 123

Gonzales on Gonzales: From the Wall Street Journal, Alberto Gonzales complains about his reputation following his service as White House Counsel and Attorney General:
"I consider myself a casualty, one of the many casualties of the war on terror."
Yup, when I think of casualties of the war on terror, I think of 3,000 people killed on 9/11, troops killed since then, civilian casualties in war zones, and the reputation of Alberto Gonzales, pretty much all together.

"Village Voice Lays Off Nat Hentoff and 2 Others,"

reports the New York Times. Hentoff is one of the leading mass-media writers on free speech; I'm sorry to see that he has been let go. The Village Voice is apparently in serious money trouble. "Mr. Hentoff plans to continue to write a weekly column for the United Media syndicate and contribute pieces to The Wall Street Journal."

Thanks to Victor Steinbok and Robert Ambrogi (Legal Blog Watch) for the pointer.


Last Year's Predictions:

Here are my 2008 predictions from last December:

(1)John McCain recovers to win the Republican nomination.

(2)Ron Paul does better than expected, and is one of the last three candidates left in the race. He then runs a third party campaign, drawing enough support from McCain, especially in the Mountain States, to throw the race to the Democratic nominee.

(3) The U.S. will enter a recession in the third quarter of 2008

(4) which will also be the bottom of the housing market in nominal (but not real) price terms.

(5) There will be a surprise Supreme Court vacancy.

I was spot on regarding number 1. Ron Paul did do better than expected in both fundraising and enthusiasm, but his campaign faltered when he finished a distant fifth in New Hampshire. From what I can tell, his advisers deluded themselves into thinking he had a real chance to win the nomination, and ran ads portraying him as a mainstream conservative Republican, instead of the maverick libertarianish anti-war candidate he was. It seems that the U.S. entered the recession a bit earlier than I predicted. Not a bad prediction though, given all the commentators who were predicting indefinite economic growth. The housing bottom is not upon us yet, though housing does seem to have bottomed in some Western markets. As for the Supreme Court, that one was a throwaway--I had no reason to believe a vacancy was imminent, but it was fun to speculate.


Sixth Circuit En Banc Divides Over Sentencing:

On Christmas Eve, the U.S. Court of Appeals for the Sixth Circuit released its en banc opinion in United States v. White, a potentially important sentencing opinion. Splitting along traditional lines, 9-6, the Court held that it is constitutional for a judge to impose sentencing enhancements based upon the defendant's conduct underlying additional counts for which he was acquitted, so long as the resulting sentence does not exceed the jury-authorized maximum sentence for the crimes for which the defendant was convicted.

Judge Cook's opinion for the majority begins:

This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White’s offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.
Judge Merrit's dissenting opinion begins:
The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years. There are at least two related but independently sufficient reasons to reverse White’s sentence. First, the reasonableness — and thus legality — of White’s sentence depends entirely on the presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment. Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense.

My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court’s opinion in United States v. Watts, 519 U.S. 148 (1997). The majority also misunderstands the Supreme Court’s Apprendi-Blakely-Booker line of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.

After briefly explaining the sentencing facts of this case (facts glossed over in the majority opinion), I will set out the reasoning the majority should have followed. Because the sentence cannot be upheld as reasonable without accepting as true certain judge-found facts, the sentence represents an as-applied violation of White’s Sixth Amendment rights and should be reversed. White’s sentence, of course, is just one example of the widespread problem of using judge-found facts to calculate the applicable sentencing range under the Guidelines. In my view, the solution to this problem lies in the distinction between offense conduct, which must be found by the jury or admitted by the defendant, and offender characteristics, which may be found by the sentencing judge. Next, I turn to the broader question of acquitted conduct. Because there is no binding precedent on the issue of acquitted conduct and the right to trial by jury, we should address this open question by reference to the history and substantive protections of the jury-trial right. In so doing, I conclude that punishment for acquitted conduct poses unique constitutional problems and must be avoided.

I am anything but a sentencing law maven — and I would normally expect to agree with the judges in the majority than those in the dissent — but I am inclined to think the dissent is correct here. I also think it is also interesting that, while the Supreme Court has not spilt along traditional ideological lines in its big sentencing cases (e.g. Apprendi, Blakely, Booker), the split here is along traditional right-left lines.

Paul Doug Berman has more here and here. [Many apologies to Doug Berman, I have a bad habit of calling him "Paul.")


Sixth Circuit Doesn't Always Divide on Habeas:

It may sometimes appear that the judges on the U.S. Court of Appeals for the Sixth Circuit are hopelessly divided in habeas corpus cases, particularly those involving ineffective assistance of counsel claims. (No doubt, my frequent blog posts on such divided opinions may feed that impression.) Yet the judges often do agree in such cases, and Brown v. Smith is a good example (even if all three judges did not join the same opinion). The three judge panel, consisting of Chief Judge Boggs and Judges Moore and Clay, was unanimous in reversing the lower court's denial of Michael Brown's habeas opinion. Here is the opening of Chief Judge Boggs' opinion, joined by Judge Moore:

Michael Brown, who was convicted of sexually molesting his teenage daughter, appeals the district court’s denial of his habeas petition. He argues that his trial attorneys’ failure to investigate and obtain records related to his daughter’s counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994). The district court, applying the standard of review mandated under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown’s counsels’ performance was deficient, but held that Brown had not been prejudiced thereby. For the reasons that follow, we hold that AEDPA deference does not apply to this case, and, judging under a de novo standard, we conclude that Brown was indeed prejudiced by his trial counsels’ deficient performance. We therefore reverse.

Judge Clay wrote a concurring opinion in which Judge Moore also joined.


Don't Try to Pawn your Movado (But Your Rolex is OK):

A few weeks back I noted that the retrenchment of consumer lending had led to the revival of layaway as a form of consumer credit, which consumers had abandoned over the past decade or so as an inferior option to credit cards.

Yesterday's WSJ brings tale of the growth of pawn shop borrowing by middle and upper-middle class consumers and small businesses as another response to the drying up of consumer credit:

Typically, pawnshop customers have a household income of about $29,000, according to Dave Adelman, president of the 2,400-member National Pawnbrokers Association. But operators around the country say they are seeing a surge in new activity fueled in part by a different clientele: middle- and upper-middle-class customers facing ravaged stock portfolios, tightened bank credit and unexpected layoffs. In areas dogged by high unemployment and foreclosure rates, the pawn business is especially robust.

Rick LaChappelle, owner of four pawnshops in Maine, calculates he has lent about 33% more money this year than last. "The banking industry is not giving out any money right now," he said. "So people are relying on second-tier lending institutions."

While some pawnshops -- like Beverly Loan Co. in Beverly Hills -- have discreetly served the wealthy for decades, more stores, such as Society Hill, are newly awash with furs, diamonds and other baubles from the bubble. At places like Society Hill, transactions are up by as much as 40% in recent months.

Even Beverly Loan has seen a shift in customer patterns. "We have had so many $50,000-plus loans and more businesses [as clients] than ever before," said Chief Executive Officer Jordan Tabach-Bank. Many business clients, he said, are "getting loans to meet payroll or other obligations because their lines of credit are frozen."

The more general policy lesson here is to recognize the substitution of consumeres among different types of consumer credit and that adopting policies that make it more difficult for consumers to gain access to certain types of consumer credit (credit cards or installment loans) will often force consumers to rely on inferior forms of consumer credit (pawn shops and layaway plans). Restricting the supply of credit (or some types of credit) does not eliminate demand (or the nead) for consumer credit.

I expect we'll see more stories like this if better forms of consumer lending continue to be dry and especially if new regulations are imposed that raise the cost of consumer lending. The Federal Reserve has just issued new regulations that will raise the cost of credit cards and restrict supply, but at least won't go into effect for some time. But as consumers are relying more on fringe-lending products as a substitute to the drying of good credit options, the boom in pawn shops and other fringe-lending operations may lead to further regulation of these products that will reduce their usefulness and availability as well. Many states, for instance, seem to be considering new regulations on payday lending. The biggest concern of all is that if all of these options get snuffed out we may see consumers pushed right out of the legal market completely, leading to a rise in illegal loan-sharking activity, both for consumers and small businesses. Although some growth in illegal lending is probably inevitable as a result of the combination of problems in the credit markets and poorly-conceived regulations, let's hope that this effect will be small.


Tuesday, December 30, 2008

Bryan Caplan's Critique of the Law and Legal Scholarship:

Economist Bryan Caplan, my George Mason colleague and coauthor has some harsh, though not entirely inaccurate, comments about legal scholarship:

At risk of offending my many friends in the legal academy, I think that law is a shockingly phony discipline. Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds. Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.

Once in a while, I should add, a law professor has told me this verbatim, and then gone back to arguing about the law. The philosopher in me insists, "If there's no such thing as unicorns, we can't argue about unicorns," but the Great Unicorn Debate never stops.

There is some truth to Bryan's argument. Undoubtedly, legal scholars' views on disputed legal questions correlate closely with their ideologies. The same, of course, can be said for economists' views of disputed economic issues. For example, conservative and libertarian economists are likely to have far more pro-free market views on the causes and consequences of the financial crisis than liberal and radical ones. As I have emphasized on other occasions, most people tend to interpret political information in a highly biased way that privileges their preexisting views and rejects or downplays opposing evidence. Academics are no exception to this trend, and may indeed be more biased than the average citizen because we tend to care more about political ideology than they do. My subjective impression is that the average economist is somewhat better than the average legal scholar about confronting their own biases; but there is wide variation in both groups, and the average difference between them is a matter of degree rather than kind.

Bryan's broader claim that the meaning of law is almost entirely subjective is, I think, greatly overstated. Far from being "vague," most modern statutes are actually extremely detailed and precise. Just peruse a few pages of the U.S. Code if you doubt me. Debates between legal academics make the law seem far more unclear than it really is because they often focus on either the Constitution (an old and on some important points genuinely vague document) or on the few important modern statutes whose meaning is seriously disputed. It's hard to advance an academic career by focusing on the meaning of statutes and constitutional provisions whose meaning isn't disputed by serious commentators. Lay observers like Bryan might understandably be left with the impression that the issues debated by legal scholars are typical of the law as a whole, whereas in fact they are not.

Similarly, as Bryan himself often points out, laypeople tend to think that economics is mostly subjective because public discussion among economists focuses on issues that they disagree on. Thus, Bryan emphasizes, laypeople fail to realize that economists overwhelmingly agree that free trade is better than protectionism, that price controls are harmful, and so on. The same can to some extent be said for legal scholars' interpretation of the law. There is a wide swathe of law (the vast majority, in fact) whose meaning isn't much disputed by experts. But the experts' scholarship and public commentary focuses on questions that generate disagreement. And on those issues, expert opinion (like lay opinion) often breaks down along ideological lines.


Had Sex with a 14-Year-Old Who Lied About Her Age?

Don't sue the dating service that set the two of you up, in a context where it was clear the dating service wasn't screening members for age (and couldn't reasonably do so). That's basically the holding of Doe v. SexSearch from the Sixth Circuit.

And, no, an incautious statement on the site that "all persons within this site are 18+" isn't going to get the service on the hook. "[H]aving registered for the site himself, Doe knew that SexSearch merely required a user to check a box stating that he or she is at least eighteen, with no corroborating evidence required from the user and no attempt at verification made by SexSearch. As a result, there could be no justifiable reliance on the [18+ statement]." Sounds right to me.

Thanks to How Appealing for the pointer.


A Tale of Texas Takings:

The Houston Chronicle has an interesting story about an ongoing eminent domain case where the city of Houston is seeking to comdemn property for the benefit of a politically influential developer [HT: Instapundit]:

When finished, the .09-acre patch of land near the Galleria will be the city's smallest park. Too small even for a basketball court, Post Oak Lane Park might be big enough for a game of horseshoes, a few benches and greenery.

Using its power of eminent domain, the city of Houston seized the land for the park from brothers James and Jock Collins last year. Officials claimed there was a "public necessity" for the park in the Uptown area, despite the fact that a much larger one — the 4.7-acre Grady Park — is just two blocks away.

What will the new "pocket park" be used for? That's hard to say. The city has yet to draw up any plans for the land at the corner of Post Oak Lane and San Felipe. In fact, city parks director Joe Turner testified in a sworn deposition last month that his department did not come up with the idea for the park and that he opposed using condemnation powers for its creation.

What the park will provide is a landscaped gateway to an upscale development planned next door, called BLVD Place.

Mayor Bill White and council members insist they condemned the land last year as a matter of good faith to taxpayers. The city needed some of the land to widen San Felipe and will turn the rest into the park.

But documents obtained by the Houston Chronicle show the move also helped BLVD Place developer Ed Wulfe, a major donor to White, seal the deal on a $12.5 million land sale related to his ambitious mixed-use development.

If the Chronicle's description is accurate, this is a typical case of the use of eminent domain for the benefit of private interest groups under a thin veneer of advancing the public interest. The landowners are trying to fight the taking in court. But, as the Chronicle points out, they face an uphill legal struggle because "[p]roving abuse of eminent domain authority could be difficult, legal experts said." I agree with the unnamed experts consulted by the Chronicle reporters. Texas law allows the condemnation of almost any property for nearly any plausible-seeming reason presented by government officials.

You may wonder how this could be. After all, Texas is one of 43 states that adopted a new eminent domain reform law in the wake of the massive public backlash after the Supreme Court's hugely unpopular decision in Kelo v. City of New London. The answer is that Texas' 2005 law is one of many that purports to constrain eminent domain without actually doing so. Although the new statute forbids takings that transfer property to private parties for "economic development," it allows essentially identical condemnations that promote "community development;" under the new law, virtually any real or imagined benefit to the public can be portrayed as facilitating "community development." The new statute also perpetuates previous laws allowing state and local governments to declare almost any area "blighted," thereby making it eligible for condemnation in order to facilitate alleviation of the supposed "blight." I discuss Texas' bogus post-Kelo "reform" law on pp. 31-33 of this article, which also analyzes similarly ineffective reforms in many other states.

UPDATE: I suppose I should reiterate that, unlike, in Kelo, much of the condemned land here may end up as part of a publicly-owned facility: a city park. However, some will apparently be used as a "landscaped gateway" for a privately owned development project. If that happens, there would effectively be a transfer of at least some of the condemned land to a private entity, even if the city might continue to own the "gateway" on paper.


Educated Judges are Better Judges:

Josh Wright and his co-authors find that federal judges are less likely to have their decisions in antitrust cases appealed if they have received training at the George Mason Law and Economics seminars, at least in less-complex cases.

Despite this apparent increase in the quality of judicial decision-making in some antitrust cases (or a less-charitable critic might postulate, because of it), some interest groups and members of Congress want to shut down the LEC's programs. Indeed, given that they find that judicial training improves decision-making in less-complex but not more-complex cases, perhaps a more logical conclusion would be that judges should be exposed to more rather than less such training.

For those who missed the Federalist Society's National Lawyers Convention, one of the most entertaining panels was the on the "Regulation of Judicial Conduct" which featured a discussion of the efforts by certain members of Congress to restrict or make more difficult the ability of judges to attend judicial education seminars. Eugene appeared on that panel, along with Judge Raymond Randolph and Robert Schiff, and Judge Carlos Bea moderated.


Blagojevich Appoints Roland Burris as Senator, Senate Democrats Apparently Threaten Not To Seat Him:

See this Bloomberg story for more on the matter, and on Burris. See here for Senator Reid's statement that says Burris "will not be seated by the Democratic Caucus," which I assume means the Democratic Caucus will vote not to seat him, rather than that they'll seat him in the Senate but just won't let him join the Democratic Caucus within the Senate.

If there's some evidence that Burris's appointment was indeed the result of a bribe or some illegal maneuvering, then indeed the Senate can refuse to seat him. But if there is no such evidence, then for reasons I noted earlier, I think their position is legally unsustainable, given the Supreme Court's Powell v. McCormack precedent. And if Burris is indeed clean, then I don't see much of a political upside to a Democratic refusal to seat him, either.

UPDATE: Prof. Brian Kalt (Concurring Opinions) agrees with me on the legal issue.

Some commenters also suggest that the constitutional issue may be different because Burris is being appointed, not elected (whether by the people or, as before the Seventeenth Amendment, by the state legislature). I don't see any basis in the text of the Constitution to treat lawfully appointed Senators differently from lawfully elected ones, except that the provision about "Elections [and] Returns" would presumably be read as covering an inquiry into the lawfulness of the appointment — e.g., whether it was the result of a bribe — just as it would normally cover an inquiry into the lawfulness of the election.

But if the argument is simply that Blagojevich is generally a criminal, and not that the appointment of Burris was done criminally, I don't see how that can fit within the Senate's power given -Powell v. McCormack.


Judging a Book By Its Cover:

FIRE has produced a video of the outrageous case of Keith John Sampson at Indiana University-Purdue University Indiana. Eugene blogged about it back in the spring. The video is a nice summary of the whole affair.

Greg Lukianoff has blogged on it too.


More on the original actions by IUPUI was provided at the time by John Rosenberg here.


Did the Sixth Circuit "Fuzzy Dice" Decision Violate Federal Law?: I blogged yesterday about the Sixth Circuit's recent decision in United States v. Davis, the case striking down Michigan's statute on driving when the driver's vision is obstructed by dangling or suspended objects in the car. Here's a potential new wrinkle: It appears likely that the decision was handed down in violation of a federal statute, 28 U.S.C. § 2403(b), requiring federal courts to give states notice and an opportunity to intervene before ruling that a state statute is unconstitutional.

  28 U.S.C. § 2403(b) states:
In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.
  My understanding is that the court failed to notify Michigan state authorities that it was considering this issue. As I understand it, Michigan only learned of the panel's inclination when the panel handed down its decision on December 19th. If I'm right about this, then it seems pretty clear that the the Sixth Circuit violated the statute. This was (1) a proceeding in a court of the United States, the United States Court of Appeals for the Sixth Circuit; (2) the state was not a party, as the only two parties were the United States and Davis; (3) the constitutionality of a state statute was drawn into question, in that the statute was actually ruled invalid; and (4) the statute affected the public interest, in that it effects the legality of the driving of millions of Michigan residents. And yet it seems the State of Michigan was never notified in any way, much less via the required certification to the Attorney General that permited the State to intervene for argument on the question of constitutionality. (Indeed, not even the parties themselves knew the issue was in play, and there was no argument at all.)

  The next issue is, what's the appropriate remedy for this apparent statutory violation? I did a quick check, and found a few cases where this statute was violated. In those cases, the violation generally led to either reversal or rehearing. For example, in Fordyce v. City of Seattle, 55 F.3d 436, 442 (9th Cir. 1995), the Ninth Circuit held that it was an abuse of discretion for a district court judge to not formally allow a state to intervene in such circumstances. In United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996), the Ninth Circuit granted panel rehearing and allowed briefing by the State of California on the issue of a state statute that had been struck down as void for vagueness. There isn't much on this in the Sixth Circuit, at least based on a quick check, but it will be interesting to see if the apparent 28 U.S.C. 2403(b) violation leads to rehearing either from the panel or the en banc court.

Still waiting

for Glenn Greenwald to tell us what would be a "proportionate" Israeli response to the launching of hundreds of missiles at its civilian population from Hamas-controlled Gaza, as opposed to what he calls Israel's current "massively disproportionate response."

In other Greenwald news, just to keep track of who is engaging in what Greenwald calls "juvenile and emotionally manipulative means of argumentation," Greenwald implicitly acknowledges, as I noted yesterday, that he blogs far more about Israel than I do. But according to Greenwald, when he blogs constantly about Israel, it's because he's a clear-eyed realist about the implications of Israeli actions for American foreign policy; when I do it less often, it's because I'm an "Israel-obsessive." Glad that's cleared up. (UPDATE: To clarify, I don't think that Greenwald is an "Israel-obsessive," but do find it odd that he called me one, based on his own frequent posting on Israel-related matters, and his admission in the comments that he rarely reads my blog posts.)

Meanwhile, I actually agree with Greenwald on one point: "none of these intractable disputes between Israel and its various neighbors should be a focal point of American policy."

UPDATE: You can read Greenwald's response, and my response to his response, in the comments below. To save you the suspense, he STILL doesn't tell us what he thinks a proportionate response by Israel to the launching of hundreds of missiles at its civilian population from Hamas-controlled Gaza would be, nor does he admit the obvious, that he simply believes that since Israel has brought the Gaza situation on itself through its bad actions, Israel has no right to defend itself from the missiles.

UPDATE 2: Greenwald purports to answer:

I've answered this repeatedly. Do you know of anyone who actually believes that at the end of this Israeli attack, there will be no more Hamas, or no more rockets?

The only military solution to the rocket attacks is total annihilation of the residents of Gaza and a complete flattening of their cities. If Israel were to do that, what possible objections would those here be able to make who are arguing that "proportionality" has no role to play in restricting the means used to fight justifiable wars?

Terrorism ends when the causes of it are addressed, typically via diplomatic means. That's what history proves. I know that's not as spectacular or exciting or blood-pumping as watching people you hate and their children get incinerated by bombs dropped from on high, but it's still how it is.

According to Hamas itself, the "cause" of Hamas's terrorism is the very existence of Israel. Hamas spokesmen will occasionally raise the possibility of a long-term "hudna," but then they are usually contradicted by others in Hamas, and in any event they acknowledge that the hudna would only be a temporary step toward the ultimate "liberation of all of Palestine." So, there is really only one pure "diplomatic" solution to the problem of Hamas terrorism, and that is for Israel to capitulate. So if you were wondering why Israelis from across the political spectrum, from Meretz to Yisrael Beitanu, aren't exactly flocking to take Greenwald's advice, there you have it. And military action, done right, is hardly completely useless--how many terrorist atrocities have emanated from Jenin or Bethlehem lately?


Wiccan Real Estate:

From the listing for 833 22nd Street South, Arlington, VA: "A Charming house witch has been updated ..."


Michael Newdow Sues Over Religious Speech at Inauguration:

Prof. Howard Friedman (Religion Clause) has details, including links to the complaint and its Appendices. Newdow -- who filed the lawsuit against the use of "under God" in the Pledge of Allegiance -- is seeking the removal of "so help me God" from the oath to be read by Chief Justice Roberts, and exclusion of the clergy invocation and benediction. (Note that Newdow is not seeking to prohibit President-Elect Obama from saying "so help me God" in his oath.)

The lawsuit's Establishment Clause argument about the inaugural prayers is foreclosed by Marsh v. Chambers (1983), which held that legislative prayers are generally constitutionally permissible, even to the extent they may endorse religion, because of the long tradition of such prayers dating back to the same Congress that proposed the Establishment Clause.

I can't speak with equal confidence about Newdow's argument that the court should at least enjoin any prayer that focuses on a particular denomination, rather than just being generically Judeo-Christian monotheism (itself a denomination, but one that Marsh suggested was capacious enough for government work). See here for a hint of the debates in lower courts about when and whether denominationally specific prayers are constitutional, though there are many more cases on the subject than just the one I mention there. I should note, though, that Newdow's argument on this has been rejected before, in the decision rejecting his lawsuit about the 2005 inauguration. And a President's inviting a particular clergyman to say things at the President's inauguration might well be treated as an extension of the President's own right to express whatever views -- including denominationally specific views -- he wants to express as part of his own speech.

The Establishment Clause argument about the "so help me God" in the oath is likely also foreclosed by Marsh, given the long tradition of "so help me God" in oaths. (Oaths, after all, were supposed to be invocations of God, as opposed to affirmations, which were the constitutionally prescribed alternative for those who didn't want to swear to God.) There is of course a dispute about whether President Washington said "so help me God" in his oath. But it's clear that early oaths -- including the one for federal judges and Justices, plus several other examples from early Congresses -- commonly contained the phrase. The logic of Marsh would thus amply apply here.

The lawsuit's Free Exercise Clause and Religious Freedom Restoration Act arguments are foreclosed by the requirement that the government action must "substantially burden" the claimant's religious practice. Under the caselaw that has developed as to substantial burden, being offended at the government's use of religious language in a government ceremony would not qualify.

There is also the possibility that Newdow can't relitigate the matter now, because he had filed similar lawsuits over the 2001 and 2005 inaugurations; but I don't think this would bar the other plaintiffs. The plaintiffs might also lack standing to litigate this, but I doubt it, given that some of the plaintiffs claim they may be present at the inauguration. In any case, I leave those procedural questions aside here; people who are interested in them might want to read this decision about the 2005 inauguration.

Related Posts (on one page):

  1. "Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds":
  2. Michael Newdow Sues Over Religious Speech at Inauguration:

Monday, December 29, 2008

Casual Prejudice at Vanity Fair:

Here's James Wolcott's vain attempt at starting a post highly critical of Israel with some humor: "In angry retaliation for the house arrest of Bernie Madoff, Israel has launched a hellacious air assault against Hamas in Gaza ..."

Get it? Madoff's a Jew! Israel is a Jewish country! Israel is retaliating for the arrest of Madoff! Ha, ha!

One would have thought that this sort of "humor" died out at a country club in Greenwich around 1958, but I guess not.


When Will We Watch Watchmen?

20th Century Fox and Warner Brothers have been sparring over the latter's forthcoming release of Watchmen, based on the blockbuster D.C. Comics graphic novel of the same name. Fox alleges that WB violated their copyright by making the film because Fox purchased the story rights back in the 1980s, and is seeking to delay the film's release. News reports here and here.

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  1. We Can Watch "Watchmen" in March:
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Using Eminent Domain to Acquire Land for the Flight 93 Memorial:

Various readers have asked for my views on the federal government's possible plan to use eminent domain to acquire land for a memorial commemorating the heroes of Flight 93, the plane hijacked on 9/11 that was retaken by the courageous efforts of the passengers, but then crashed in Pennsylvania. Flight 93 families are urging the government to use eminent domain because some of the owners of the needed land have so far refused to sell. It's not yet clear whether the Bush Administration or the incoming Obama Administration will agree.

As a legal matter, I think it's fairly clear that this proposed taking would be constitutional. Although I favor a more restrictive interpretation of the Public Use Clause of the Fifth Amendment than that adopted by the Supreme Court in cases such as Kelo v. City of New London (where it held that virtually any potential "benefit" to the public counts as a "public use" for which property can be taken by comdemnation), this is still a fairly easy case. After all, the condemned property would be used for a government-owned and government-run memorial that will be open to the general public. Thus, there is clearly a "public use" in the intuitive sense of the word (ownership by the government and/or open access for the general public).

The case would in fact be similar to the famous 1896 Supreme Court decision in United States v. Gettysburg Electric Railway Co., where the Court upheld the condemnation of property for the purpose of building a monument on the site of the Battle of Gettysburg. Contrary to widespread belief, the Gettysburg Court did not foreshadow cases like Kelo in holding that any public benefit counts as a public use; to the contrary, the Court emphasized that a condemnation transferring property to a private entity should be subject to stricter scrutiny than one "where the government intends to use the land itself" (I discuss Gettysburg more fully on pp. 242-43 of this article). In this case, however, as in Gettysburg, the government does in fact "intend . . . to use the land itself," so there is no constitutional problem.

Whether the use of eminent domain is justified on policy grounds is a tougher question. Nonetheless, I would tentatively say that it is. This is a classic case where eminent domain might prove necessary because 1) the government needs a specific site for its project (there are obvious advantages to building the memorial on the site where the plane crashed), 2) holdout problems might be an issue, and 3) they could not be overcome through secret purchase because this is a public project that must be openly discussed and presented in advance. By contrast, private developers can usually use secret purchase to forestall "strategic holdouts" and therefore eminent domain is rarely if ever needed to assemble land for private projects that genuinely create more economic value than the current uses of the land the developers seek to acquire (I discuss these points at greater length on pp. 205-10 of this article).

However, I would need to know more about the proposed memorial to reach a definitive judgment on the policy issues. Not every taking permitted by the Constitution and potentially justified by economic theory is actually a good idea.


Northwestern Law Introduces Deferred Conditional Acceptances: Paul Caron has the scoop. Apparently, Northwestern is issuing about 15-25 of these letters every year: The letters tell 1L applicants that they have been turned down for 1L admission but that they will be admitted as transfers if they can achieve a particular GPA or class rank at another school. The goal being, presumably, to get students who they want but who have low numbers that might hurt the school's US News ranking if they enrolled as 1Ls.

No Free Vacation for Greenwald:

Glenn Greenwald, I take it, will not take me up on my offer of a free vacation to Sderot. My offer was specifically in response to his claim that Israel is engaging in a "massively disproportionate response" to the shelling of southern Israel from Gaza.

He obscures the issue by writing:

That "argument" is the same as saying to someone who objects to Hamas' suicide bombs or rockets: "I'll personally pay for your Ramallah or Gaza City vacation, so you can see what it's like to live imprisoned by walls, under a 40-year foreign occupation, with blockades that cause your children's growth to stunt and to be denied basic nutritional and medical needs."

The fact that the people of Location X are suffering doesn't mean that anything and everything their government directs to the general vicinity of those inflicting the suffering is justified.

So, now that I don't have to worry about paying for Greenwald's vacation, I can ask, rhetorically (though Greenwald is free to answer): when a terrorist entity controls territory bordering that of a sovereign nation, and indiscriminately lobs rockets into that nation's territory, terrifying the civilian population and making normal life unlivable, what is a proportionate response?

Israel has engaged in pinpoint targeting of military facilities operated by said terrorist entities, and has gone so far as to send messages in Arabic to residents of Gaza, warning them that if they allow their homes or businesses are sheltering Hamas weaponry, they will be destroyed. Even according to Palestinian sources, the overwhelming majority of victims of Israeli bombs thus far have been Hamas fighters. This is perhaps the least extreme response that any sovereign nation faced with an analogous situation has ever engaged in. Cf. Russia in Chechnya.

Greenwald's real problem, I surmise, is that he thinks that Israel's response is "disproportionate" not because its disproportionate relative to Hamas's military actions and Israel's military objectives compared to the civilian damaged inflicted (more or less the international law definition of proportionality), but because he believes that Israel is primarily to blame for the situation in Gaza, and therefore any suffering inflicted on Gaza's civilians is primarily Israel's fault. Hence his observation about Israel's blockade of Gaza, which is not at all relevant to whether Israel's response to the rocket fire is "proportionate," but rather to whether Israel is morally at fault in general.

But by putting the issue in terms of the "proportionality" of Israel's response, Greenwald (and others) are obscuring their real argument, which is that Israel is not entitled to act in self-defense because no matter how many rockets are launched into Israeli territory, Israel is ultimately the aggressor in the Gaza situation.

I find that argument hopeless naive, and, in fact, counterfactual. Let's start with the fact that the blockade was a response to Hamas's actions against Israel, not vice versa. (If Hamas had been a peace-loving entity, and Israel had nevertheless blockaded its territory, and I had attacked Hamas's military response as "wildly disproportionate", then Greenwald's counter-offer of a trip to Gaza would make sense). Now imagine for a moment that Hamas announced, sincerely, that its goal was no longer to annihilate Israel, but to establish a peaceful Islamic democracy that was willing to work with Israel and the Palestinian Authority to achieve a lasting agreement with Israel, and then acted on that announcement by ceasing all violence aimed at Israel and offering to commence negotiations immediately. Is there any doubt that the blockade would end forthwith? And, for that matter, that Israel would happily cooperate with a peaceful Hamas and the international community to return Gaza to the incredible rates of economic growth (and beyond) it achieved under the first 20 years of the "brutal occupation"? Hamas, however, is not interested in a peaceful settlement with Israel, and, while its leaders hide in underground bunkers, is perfectly willing to fight Israel to the last Palestinian civilian.

So, to sum up, let's rephrase Greenwald's position: "I think that Israel is not entitled to cause any casualties, civilian or otherwise, in Gaza, because Israel bears the primary, indeed, almost the entire, responsibility for the conflict it is facing with Hamas. Therefore, Israeli civilians living in the range of Hamas rockets must simply bear with it until their government adopts more enlightened policies that will magically lead Hamas to prefer to live in peace with Israel.

Finally, I find it rather amusing that Greenwald refers to me as an "Israel-obsessive." I blog a fair amount about Israel, not least because I'm there twice a year and my wife is Israeli. Greenwald, meanwhile, blogs far more about Israel, without similar ties. What does that make him?

UPDATE: From the ridiculous to the sublime: Greenwald is now citing Philip Weiss, the right-wing Nazi fringe's favorite Jew (and who, last I looked, had openly anti-Semitic bloggers on his small blogroll), as an authority on the conflict.

Related Posts (on one page):

  1. Still waiting
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Regulation by Deal

Tyler Cowen has a charactestically fine piece in yesterday’s NYT, with much good sense in it. Among other things, however, he says this:

The ad hoc aspect of the bailout created a precedent for what has come to be called “regulation by deal” — now the government’s modus operandi. Rather than publicizing definite standards and expectations for bailouts in advance, the Fed and the Treasury confront each particular crisis anew. Decisions are made as to whether a merger is possible, whether a consortium can be organized, what kind of loan guarantees can be offered and what kind of concessions will be extracted in return. So far, every deal — or lack thereof, in the case of Lehman Brothers — has been different.

While there are some advantages to leaving discretion in regulators’ hands, this hasn’t worked out very well. It has become increasingly apparent that the market doesn’t know what to expect and that many financial institutions are sitting on the sidelines, waiting to see what regulators will do next. Regulatory uncertainty is stifling the ability of financial markets to engineer at least a partial recovery.

But earlier on, he says this:

With the Long-Term Capital bailout as a precedent, creditors came to believe that their loans to unsound financial institutions would be made good by the Fed — as long as the collapse of those institutions would threaten the global credit system. Bolstered by this sense of security, bad loans mushroomed.

So clearly a single act, albeit an exercise of administrative discretion, can create expectations and influence behavior. The problem, then, must be that that the government has not acted consistently since then. The inconsistency has created uncertainty that has frozen the credit market. But is that really true? Has the government really acted inconsistently? And, if so (with Lehman the primary exhibit), didn’t most of the government actions occur after the onset of the crisis? Doesn’t Tyler’s argument imply that the government should have bailed out Lehman, as that would have enhanced consistency and hence predictability? Yet I think he believes the contrary.

Steven Davidoff and David Zaring coined the “regulation by deal” phrase in a recent paper that traces the government’s response to the financial crisis. But what exactly does “regulation by deal” mean?

In essence, it refers to cases where the government pays someone to act in a certain way. In the typical bailout, the government gives cash or credit or some other valuable consideration in return for control rights, a right to repayment of some sort if all goes well, and a few other things (lower executive pay, no more private planes, and so forth). The usual form of regulation, by contrast, involves the passing of rules and the punishment of people who violate them.

Regulation by deal is hardly confined to the financial sector. Nearly every criminal case ends in a deal: the government offers a reduced sentence in return for a confession and cooperation. Governments make deals with witnesses when they offer them protection in return for testimony. Governments pay informers, they offer bounties, indeed they buy all sorts of thing—tanks, tractors, land, intellectual property rights, the services of contractors and employees. Most of the time regulation by deal doesn’t bother us; why should it bother us now? In each case, the government pays someone for his consent to alienate something of value.

Tyler complains that the government doesn’t publicize “definite standards and expectations for bailouts in advance.” I’m not sure the government ever publicizes definite standards and expectations in regulation-by-deal situations. Imagine how hard it would be: “We will buy land when…”—when what? When we want it, that’s when. If you want to buy things from people, you usually don’t want to announce the terms in advance—that eliminates your bargaining power and opens up all sorts of avenues for strategic behavior by potential sellers. Prosecutorial discretion has frequently been criticized, and the deals that prosecutors make may not always be consistent, but no one has found a plausible alternative approach.

To be sure, the government sometimes does lay out standards for deals or purchases; indeed, we have some bailout rules in place. The FDIC system provides that if banks become insolvent, the government will pay some of their creditors up to a certain amount. This is plainly insufficient for a real financial crisis—indeed, the point of maintaining regulatory flexibility to address financial crises is that the usual regulatory tools have failed.

The question for Tyler is just what would the bailout rules that he has in mind look like? I suspect that an adequate set of rules could not be invented—and that the lesson of his column is not that regulatory discretion to address crises in the financial sector is wrong, but that a particular exercise of that discretion, the decision to bail out LTC, was wrong. What would the rules be? The institution has to be big, no? But how big? Doesn’t it matter whether the financial health of other firms depend on the firm in question; if so, how many such firms and to what degree? And isn’t the overall health of the economy also a relevant factor—indeed, Tyler points to the different conditions that prevailed in 1998—the budget surplus, the booming economy, the small size of the derivatives market—as a reason why the LTC bailout was a mistake. How should these factors be incorporated into a rule?

The decision to bail out a firm or industry rests on a mixture of economic, psychological, and political imponderables that can’t be reduced to rules. Or such is my view. If this view is wrong, what should the bailout rules be?


Sixth Circuit Panel, Acting Sua Sponte, Strikes Down Statute Prohibiting Driving When Driver's Vision Is Obstructed by Dangling or Suspended Objects: On December 19, the Sixth Circuit handed down a remarkable decision in United States v. Lonnie Ray Davis. In an opinion by Judge Boyce Martin, the court struck down as unconstitutionally vague Michigan's law that prohibits driving with dangling objects from the rear-view mirror when the object obstructs the driver's vision.

  Notably, the briefs filed in the case did not argue that the statute was unconstitutional, and the parties did not discuss the issue at oral argument. The only issue raised in the case was whether the traffic stop was based on probable cause under the Fourth Amendment. (The appellant's brief is here, and the government's brief is here.) When the case was handed down, however, the Sixth Circuit panel had turned it into a very different sort of case, one with quite far-reaching implications. The resulting opinion strikes me as pretty unconvincing, so I thought I would blog about it.

  I. Statutory Background

  Most state traffic codes have provisions prohibiting objects inside the vehicle that obstruct the driver's vision. Some codes have provisions that are a bit more specific, and prohibit objects "suspended" from the rear view mirror or hanging on the windshield that obstruct the driver's vision. Some prohibit objects that "materially" obstruct the driver's vision, while others just prohibit objects that obstruct the driver's vision.

  Every code is worded differently, but these sort of traffic laws are pretty common. See, e.g., Va.Code Ann. § 46.2-1054 (Michie 1998) (“It shall be unlawful ... to drive a motor vehicle ... with any object ... other than a rear view mirror ... or other [approved] equipment ... suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view ... through the windshield....”); N.Y. Veh. & Traf. Law § 375(30) (McKinney 1996) (“It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle ... in such a manner as to obstruct or interfere with the view of the operator through the windshield....”); 625 ILCS § 5/12-503(e) ("No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield, rear window, side wings or side windows immediately adjacent to each side of the driver which materially obstructs the driver's view."); Neb.Rev.Stat. § 60-6,256 ("It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon such vehicle . . . in such a manner as to obstruct or interfere with the view of the operator through the windshield or to prevent the operator from having a clear and full view of the road and condition of traffic behind such vehicle."); La. Rev. Stat. 32:361.1(B) (“no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver's clear view through the front windshield or front side windows....” ).

  As far as I know, no court has previously adjudicated a "void for vagueness" challenge on the merits to these statutes. I found one challenge that was brought to one statute in which the merits weren't reached, but other than that these statutes appear not to have been challenged (or if they are, the challenges are rare and presumably unsuccessful). The general understanding has been that these statutes are constitutional. That is, until December 19, when the Sixth Circuit handed down its opinion in Davis.

  II. Facts and Procedural History of United States v. Davis

  The facts of Davis are simple. Davis had a 4-inch tall "Tweety Bird" ornament hanging from his rear view mirror by a 3-inch string. An officer spotted Davis driving late one night and pulled over his car for violating a Michigan traffic law, Section 257.709(1)(c), which states: "A person shall not drive a motor vehicle with any of the following: . . . A dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle." After he was stopped, Davis admitted that he had no driver's license, and he was arrested for driving without a license. A search incident to arrest revealed an open container of booze, four rolled up wads of cash in his pocket, a stun gun under his belt, 24 grams of crack in his sock, and a loaded .380 pistol under the driver's seat.

  Davis moved to suppress the evidence on the ground that the officer lacked probable cause to believe that the dangling Tweety Bird was actually obstructing his vision. As a result, he argued, the traffic stop wasn't permitted. District Judge Gerald Rosen disagreed, and Davis entered a conditional plea. On appeal, Davis revived his argument that the Tweety Bird was too small for a reasonable officer to think that it was obstructing his vision. At oral argument, the primary issue discussed was whether the correct Fourth Amendment standard for the traffic stop was probable cause or a lower threshold, reasonable suspicion, and whether these standards had been met. One of the judges, Judge Gilman, asked defense counsel if he had thought about raising the argument that the statute was void for vagueness. Counsel responded that he had not raised that argument.

  III. The Sixth Circuit Opinion

  When the opinion was handed down on December 19th, however, the case was no longer about the Fourth Amendment. In an opinion by Judge Boyce Martin, the court decided to decide whether the Michigan statute was unconstitutionally vague, and if so, whether the statute's unconstitutionality required suppression. Judge Martin's opinion held that the statute was unconstitutionally vague, but that the evidence could be admitted anyway because the officer had a good faith belief that the statute was constitutional under Michigan v. De Fillippo, 443 U.S. 31 (1979). In other words, the court came up with the constitutional challenge on its own; ruled that the statute was unconstitutional; and then concluded that the constitutionality of the statute had no bearing on the resolution of the appeal. (The panel rejected Davis's probable cause argument in a brief footnote — see fn 6.)

  The key point, emphasized by Judge Martin's opinion, was that "[g]oing forward, however, reliance on Mich. Comp. Laws § 257.709(1)(c) to justify similar stops" was not allowed. The statute was effectively off the books. Putting aside the extremely unusual procedural moves in the case, here's the heart of the analysis of why the law is unconstitutionally vague:
  The difficulty of this case lies in the ambiguity of this provision. This law does not ban all dangling objects; rather, it bans only ornaments that “obstruct the vision of the driver of the vehicle.” Yet the statute does not specify to what degree the driver’s vision must be obstructed or for how long. This leaves an undefined category of dangling ornaments that arguably violate the statute–one that could be very large depending upon how individual law enforcement officials interpret it–because the statute itself provides no additional guidance to govern enforcement.
  This is problematic for two reasons. First, the breadth of discretion it delegates to law enforcement: legislatures have a constitutional duty to set out “minimum guidelines to govern law enforcement,” Kolender v. Lawson, 461 U.S. 352, 358 (1983), but here no such neutral, objective standards are set forth. Second, the discretion delegated to law enforcement by this statute has a potentially far-reaching application in practice. Objects hung from rearview mirrors are legal in Michigan and are indeed quite common. Many vehicles on the road today have something hanging from the rearview mirror, whether it be an air freshener, a parking pass, fuzzy dice, or a rosary. And many organizations, both public and private, either encourage or require their use. Because of this, many vehicles on the road may violate the obstruction law, but the statute itself provides no guidance either to motorists or police as to which ones do. It is simply up to the officer on the street to decide. We believe that the Constitution requires more of Michigan’s legislature.
  IV. My Analysis

  On the merits of whether the statute is unconstitutionally vague, I don't find this ruling persuasive. The difference between objects that obstruct a driver's vision and those that don't does not strike me as such a difficult or metaphysical distinction for police or drivers to understand. The driver's vision is his vision of the road, road signs, and other cars on the road. If there is nothing obstructing his vision, he can see these things from his driver's position through the front windshield. If there is something obstructing his vision, he can't. It's not exactly rocket science, and it's not very similar to the kind of inscrutable legal standards that have led the Supreme Court to struck down statutes for giving the police too much discretion in cases like Kolender v. Lawson.

Related Posts (on one page):

  1. Sixth Circuit Withdraws Opinion Striking Down Traffic Law on Vagueness Grounds:
  2. Did the Sixth Circuit "Fuzzy Dice" Decision Violate Federal Law?:
  3. Sixth Circuit Panel, Acting Sua Sponte, Strikes Down Statute Prohibiting Driving When Driver's Vision Is Obstructed by Dangling or Suspended Objects:

Navy, NRDC Settle Whale Suit:

The Navy and the Natural Resources Defense Council have settled the latter's lawsuit over the potential impact of Navy sonar on whales in the Pacific. According to the AP, the deal requires the Navy to continue researching the effect of sonar on marine mammals, but will not have to adopt any additional mitigation measures.

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  1. Navy, NRDC Settle Whale Suit:
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Israel's "Disproportionate" Response:

Boy, am I already getting tired of hearing this. The basic claim is that since the thousands of rockets that Hamas has lobbed into southern Israel have caused relatively few death and injuries--just some deaths and injuries, along with massive panic, children living in bomb shelters, thousands of shock victims, etc.--Israel has no right to respond with overwhelming force.

What the Israeli government should do is offer anyone who thinks that having 1/4 million people living under constant fear of deadly rocket fire is acceptable, and should be accepted implicitly by the Israeli government, a plane ticket to Israel and free lodging in Sderot, the border town hardest hit by rockets from Gaza. Hell, I'll personally pay for Glenn Greewald's Sderot vacation.

UPDATE: BTW, I don't have a strong opinion on the wisdom of the Gaza operation. Despite the many strong opinions that one will see in the blogs on this issue, there are so many variables, and so much secret information that only government officials possess (including the real, as opposed to public, views of Egypt, Jordan, and the PA), that it would be rather foolish of me to express a strong viewpoint on whether the operation will achieve its objectives at a reasonable cost or not. But as with the 2006 Lebanon operation, arguing over its wisdom is a very different matter than arguing over whether Israel has the moral right to act to defend its civilian population from rocket attacks launched by terrorist entities.

Related Posts (on one page):

  1. Still waiting
  2. No Free Vacation for Greenwald:
  3. Israel's "Disproportionate" Response:

Isn't "Happy holidays" a form of suicide bombing too?

A recent letter to the editor of the Boulder Daily Camera explains an atheist perspective on "Merry Christmas":

Every time you wish us a Merry Christmas, you are persecuting us for our beliefs...Every time you wish us a Merry Christmas you are claiming that you have rights that we do not have. You are declaring that through your belief in a deity, you are better than us. Every time you say, "Merry Christmas" to a non-Christian, you might as well be suicide-bombing them or nailing them to a cross, placing a crown of thorns on their heads and sticking a spear in their sides.
Several follow-up letters to the Daily Camera, including one from an atheist (here, here, here, and here) contend that wishing someone "Merry Christmas" is not the same as murdering them by suicide bombing.

However, if we assume for the sake of argument that "Merry Christmas" is identical to "Now you will die, infidels," another part of the letter struck me as illogical. The letter concluded, "Happy Holidays!"

For the ultra-sensitive atheist, it is hard to see why "Happy Holidays" is an improvement over "Merry Christmas." "Holidays" is, after all, very obviously derivative of "Holy days." A scrupulously p.c. person who wishes someone "Happy holidays" might be taking care to be inclusive in case the person does not celebrate Christmas, but does celebrate Hanukkah, Eid, Yule, or Diwali. Well and good, but my own observation is that the non-Christian people who tend to pitch a fit because someone said "Merry Christmas" to them are not Jews, Muslims, or Hindus, but instead are a minority of atheists who are on the look-out for reasons to be offended. To this group, the phrase "Happy holidays," should not, logically, be any less offensive than "Merry Christmas." The latter refers to a single religious celebration, while the former aggregrates a variety of religious celebrations. Indeed, the latter phrase should be even more offensive, since it reminds the readily-offended atheist of his separation not only from Christians, but also from the larger community of religious believers.

It is true that "Happy holidays" also includes Kwanzaa, which is not religious, but is founded on Afro-centrism and Marxism. (And which is celebrated by non-racist, non-Marxist African-Americans, just as some non-Christian Americans celebrate the Irving Berlin, Santa Claus Christmas.)

But what good does this do for the eagerly-offended atheist who is not African-American? "Happy holidays" refers, at most, to Kwanzaa (which is irrelevant to non-African-Americans) and to a collection of religious holidays (the very mention of which may be highly offensive to ultra-offendable athiests).

Therefore, it is my recommendation that you use the phrase "Happy holidays" if and only if you are speaking to an ultra-sensitive African-American atheist. If you speaking to a non-African-American ultra-sensitive atheist, "Happy holidays" may be an even worse form of suicide bombing than "Merry Christmas." For this group, simply say "Happy Days," thereby avoiding the incendiary word "holidays." For everyone else, you can wish them a "Merry Christmas", "Happy Hanukkah", "Cool Yule", or whatever else you want, with virtually no risk that the recipient of your glad tidings will consider you the equivalent of a suicide bomber.


Barred from All Possession of Firearms With No Finding of Misconduct:

That's what happened in New Jersey to M.S. M.S. and his wife accused each other in 1997 of domestic violence, and eventually agreed to the entry of civil restraining orders against each other. Pursuant to New Jersey law, the state seized M.S.'s five handguns, and started forfeiture proceedings. Though the criminal complaints against M.S. stemming from his wife's charges were dismissed, the plaintiff and the prosecutor agreed to settle the forfeiture complaint by "allowing plaintiff 'the opportunity to sell' the five handguns 'to a registered dealer of firearms.'"

There was never any finding, by a criminal court or by the family court, of any misconduct on M.S.'s part, nor any admission by M.S. of such misconduct for purposes of the settlement. In fact, for whatever it's worth, the family court awarded M.S. custody of the couple's five children, and eventually dissolved all the restraining orders.

But now M.S. has a problem: In 2004, New Jersey enacted a statute, N.J. Stats. § 2C:58-3(c)(8), that outlaw the transfer of guns "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991' and whose firearm has not been returned." M.S. would like the right to get a gun, but his firearm was indeed seized because of his ex-wife's complaint (which didn't lead to any criminal or civil finding of guilt on M.S.'s part), and the firearm was indeed never returned — M.S. settled the forfeiture proceeding, with no admission of guilt, by arranging for the guns to be sold.

The state's view was indeed that M.S. is now barred from all possession of firearms, notwithstanding the absence of any finding of misconduct on his part. And a New Jersey appellate court agreed with the state.

I can report, though, that last week the New Jersey Supreme Court reversed the appellate court's decision, and held that § 2C:58-3(c)(8) applies only when "the bar to the issuance of a firearms card be due to some fault of plaintiff," such as a finding that the plaintiff had indeed done something bad. Here are the key passages:

Although our starting point is to “ascribe to the statutory words their ordinary meaning and significance,” we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature. For example, if N.J.S.A. 2C:58-3(c)(8) were to be read literally, a firearm seized as a result of a domestic violence complaint and not “returned” merely because the firearm was lost or misplaced by the police, or stolen while in police custody, would trigger the bar to the future issuance of a handgun purchase permit or firearms card....

Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded. A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)’s bar to the issuance of a firearms card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff’s firearms “not been returned” because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was “probable cause to indict,” or because the “domestic violence situation” continued after the issuance of the mutual restraining orders, then the conditions of N.J.S.A. 2C:58-3(c)(8) would have been met....

Only when a person’s firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and “has not been returned” for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), is that person permanently barred from obtaining a firearms card. That is the only sensible interpretation of N.J.S.A. 2C:58-3(c)(8) and the only interpretation that is fully consistent with what the Legislature must have intended. Therefore, under N.J.S.A. 2C:58-3(c)(8), the reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3) or by an admission made by a plaintiff in a consent judgment.

One can debate whether the result is correct as a matter of statutory interpretation, but it struck me as noteworthy in any case. Moreover, it seems to me that the Second Amendment — if incorporated against the states — would indeed require a rule that's at least this protective of gun owners; and that legislatures should in any event not enact laws such as the one at issue here, which on their face seem to disarm people without any finding of misconduct, dangerousness, or incompetence.

It's too bad that M.S. had to go through years of litigation to be entitled to own a gun, something that other adult, mentally competent Americans are and should be free to do, at least until they are found to have done something that may justify loss of that right. I leave aside what sort of showing should be required for such a loss of a right (except to say that surely some showing would suffice, for instance when someone is convicted of a crime that sends him to prison, where presumably he would not be allowed to possess a gun). Whatever the threshold, it wasn't met here.


KopBusters Hoax Looks Like It Was a Hoax Itself: A few weeks ago, I posted about what was supposed to be a new reality TV show, "KopBusters," that showcased police misconduct. The first show was about a fake drug house in Odessa, Texas, that the police allegedly raided without probable cause based on a bogus warrant. I then added an update, to the effect that "[s]ome of the details about the show and the first episode seem sort of fishy at this stage, so perhaps it is best to approach this story with a healthy skepticism."

  I thought it would be interesting to see if there were any new developments on the story, and it seems that recent developments point in the direction of the show being a misrepresentation and the claims of police misconduct being false. In particular, it seems that KopBusters staffers themselves made an anonymous tip to try to cause the police to get a warrant. (The show director has declined to say whether staffers sent in the tip -- a weird position perhaps best explained by the fact that making a false crime report is a crime. However, a Google cache of the show's message board shows a post, since edited, indicating that it did. Compare a contemporary reference to the pre-edited version here with the edited version here.)

  In light of these developments, the KopBusters show is now taking the view that the episode doesn't show police misconduct but rather "judge misconduct," on the theory that the anonymous tip shouldn't have amounted to probable cause and the judge shouldn't have signed the warrant. (See here, at the bottom.) The problem with this argument is that as explained here, the anonymous tip had a number of details that would help corroborate the story and help create probable cause. It's hard to know without actually reading the affidavit whether its facts actually amounted to probable cause, but an anonymous tip can create probable cause if it's sufficiently detailed and the police corroborate those details, see Illinois v. Gates, 462 U.S. 213 (1983). I would need to read the warrant affidavit to know if that happened here. But at the very least the claims of police misconduct appear to be false, and all we seem to have left are some debatable claims that a judge may have signed a warrant that may have been based on less than probable cause.

Related Posts (on one page):

  1. KopBusters Hoax Looks Like It Was a Hoax Itself:
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Sunday, December 28, 2008

More Christmas Wishes:

From Prof. Geoffrey Pullum on Language Log (one of my favorite blogs):

For about thirty years, Professor Laurie Taylor (retired from the University of York) has been doing a humor column in Times Higher Education, a U.K. university administration magazine, in the form of a newsletter from an imaginary Poppleton University. This week it included a painfully awkward message from an equally imaginary Interfaith Chaplain, struggling to find some kind of contentful and seasonal greeting that couldn't possibly offend anyone of any faith:

You know, very soon we will be reaching that special time of the year when people who subscribe to certain religious beliefs rather than to others will be celebrating what they regard as a very significant event. May I therefore take this opportunity to wish all such believers a very happy special time of the year...

Language Log, however, is not quite so inclined to imagine that simple words of greeting will shock or disgust anyone; it seems to us that such worries are rather closely related to word taboo, with which we have little sympathy. So it has been our custom for some years to come out quite boldly and use the C word at this season. We love writing for you, and as time permits, in our odd moments of spare time between full-time university jobs or research projects, we will continue to do so. And whatever your religion or lack of it, we wish you a happy Christmas Day.

Hear, hear!


Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:

The near-final version of this forthcoming article from the Texas Review of Law & Politics is now available on SSRN. I wrote the article with Carl Moody and Howard Nemerov. Here's the abstract:

There are 59 nations for which data about per capita gun ownership are available. This Article examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.

I blogged on VC about an earlier draft of this paper last spring. As is usually the case, VC commenters offered a variety of useful comments, which made the final paper better.


Happy Holidays and Genericity:

Given the unexpected attention being paid to my annoyance at "Happy Holidays," I ought to clarify things a bit.

First, I should repeat (but with emphasis added) that "If you tell me 'Happy Holidays,' I confess I'll get a bit annoyed because of its generic air, but I'll just assume that you're trying to play it safe -- often a very good strategy in social relations. Plus why be churlish about someone wishing you a happy anything?" It doesn't bug me much, and when I say "I confess," I mean I'm confessing it to you in this post; I certainly wouldn't berate or even glower at someone who is telling me "Happy Holidays."

Second, my chief concern about it is precisely its "generic air": "Holidays" is an abstract, general term that has much less directly evocative force than the concrete, specific "Christmas." Christmas has a wide array of immediate connotations to it, some quite vivid, and my sense is that for 90+% of the public (including many people who aren't religiously Christian) they are highly positive: Family gatherings, presents, traditions, and the like. The term "holidays" is also positive, but with many fewer immediate connotations, precisely because it covers such a wide territory.

In recognizing this, I've been influenced by Deirdre McCloskey's excellent Economical Writing: "A good general rule of words is Be Concrete. A singular word is more concrete than a plural (compare 'Singular words are more concrete than plurals'). Definiteness is concrete. Prefer Pepperidge Farm to bread, bread to widgets, and widgets to X.... In a paper on Australia the phrase 'sheep and wheat' would do just fine in place of 'natural resource-oriented exports.'" To shift from the happy to the macabre, I recall a paper of mine in which I was recounting a particular incident, and wrote "Two years later, Harriet committed suicide." Editing, I realized that it should read, "Two years later, Harriet drowned herself." It's not that this conveys much more practically useful information; but the concreteness makes the statement more vivid and immediately accessible.

Returning to "Happy Holidays," I am indeed bothered (as Eric correctly assumed) by the reason from the change from "Merry Christmas" to "Happy Holidays"; I believe it was prompted by an excessive concern about offending people who should not reasonably be offended by the old term. But if the change could have happened with no cost, I would be much less bothered. What bothers me more is precisely that the change was costly: It strikes me that a certain amount of emotional immediacy was lost in the change from Merry Christmas to Happy Holidays.

To be sure, though, the loss wasn't vast. And I sympathize with those who want to avoid offending or alienating listeners, even if I think the feeling of offense or alienation on the part of the listeners is unjustified, so I wouldn't hold the change against those who are now saying "Happy Holidays." That's part of why I'm only a bit annoyed by the phrase. But I am indeed a bit annoyed by it, by what it portends for some such changes in the future, and what it symbolizes about some such changes in the past.


Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment":

Despite erroneous media reports that Christmas 2008 is "over", Christmas is a 12-day festival that began on December 25, and continues until the "twelfth night" of January 5-6. Accordingly, it is not too late to send or receive Christmas cards, or to give or receive Christmas presents. Fortunately for gift-givers, Stephen Halbrook's excellent book "The Founders' Second Amendment" is now back in stock at Amazon. The first round of the "Second Amendment book bomb" had exhausted all of Amazon's inventory, and it took several days for Amazon's system to process the replenishment of supplies. Now, the book is available for immediate shipment. It is an indispensible book for anyone who is interested in Second Amendment issues. More broadly, now that originalism is becoming the leading method of constitutional interpretation, the book provides an outstanding template for examination of the range of sources which indicate the original public meaning of a constitutional provision. The book would be an excellent charitable gift for almost every library, including school libraries.

Related Posts (on one page):

  1. Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment":
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Do you like op-eds which pretend to be news articles?

If so, newspaper trends are going your way, as I explain in my latest column for the Rocky Mountain News. The cutting edge provider of such slanted "news" is ProPublica, a non-profit funded by the leftist Sandler familiy. Newspapers get the ProPublica "investigative journalism" articles for free, so in a time when newspapers must cut production costs, free articles can be very attractive. Even if they are one-sided argumentative pieces which have more in common with an op-ed than with a real investigative news article.


Liveblogging from Israel: here and here.

Teddy Roosevelt: Progressive. Ronald Pestritto had an interesting column in yesterday's Wall Street Journal (available here) on Theodore Roosevelt. Here is a bit:
The fact that conservative politicians such as John McCain and writers like William Kristol and Karl Rove are attracted to our 26th president is strange because, if we want to understand where in the American political tradition the idea of unlimited, redistributive government came from, we need look no further than to Roosevelt and others who shared his outlook.

Progressives of both parties, including Roosevelt, were the original big-government liberals. They understood full well that the greatest obstacle to their schemes of social justice and equality of material condition was the U.S. Constitution as it was originally written and understood: as creating a national government of limited, enumerated powers that was dedicated to securing the individual natural rights of its citizens, especially liberty of contract and private property.

It was the Republican TR, who insisted in his 1910 speech on the "New Nationalism" that there was a "general right of the community to regulate" the earning of income and use of private property "to whatever degree the public welfare may require it." He was at one here with Democrat Woodrow Wilson, who had in 1885 condemned Americans' respect for their Constitution as "blind worship," and suggested that his countrymen dedicate themselves to the Declaration of Independence by leaving out its "preface" — i.e., the part of it that establishes the protection of equal natural rights as the permanent task of government. . . .

In his New Nationalism speech he noted how, in aiming to use state power to bring about economic equality, the government should permit a man to earn and keep his property "only so long as the gaining represents benefit to the community." The government itself of course would determine what represented a benefit to the community, and whether society would be better off if an individual's wealth was transferred to somebody else.

We can see the triumph of this outlook in progressive income taxation, which TR trumpeted in his speech (along with progressive estate taxes). We may also see this theory in action when a government seizes private property through eminent domain, transferring it to others in order to generate higher tax revenues — a practice blessed by the Supreme Court in its notorious Kelo v. New London decision of 2005. . . .
The column breaks no new ground. It is just a nice reminder of why TR is one of my least favorite of all the "respected" Presidents and should provide no role model for today's political class.

Update: Max Boot defends TR as a conservative here, mainly due to his foreign policy record that "should provide inspiration for today’s generation of conservatives" but also this bit:

Given that all but the most extreme libertarians have come to terms with the New Deal and considerable post-New Deal expansion of government (e.g., Medicare and Medicaid), it hardly makes sense to denounce TR as some kind of lefty for anticipating the kind of reforms that would make our capitalist system more stable and durable.
Boot provides a lengthy defense of TR as a conservative in World Affairs, in which he concludes:
TR’s philosophy is not for everyone. He represented one strain of conservatism among many—a reformist strain of which Benjamin Disraeli was the other leading exponent. But it was conservatism nonetheless. Attempts to read him out of the conservative canon have no more persuasive power than attempts to exclude John McCain. Indeed, the energetic brand of conservatism that both men embody fits the temper of our times better than the anti-government rhetoric that defined the conservative movement of a decade ago. Some of the most influential tomes on Republican reform, by the likes of Newt Gingrich, David Frum, and Ross Douthat and Reihan Salam, argue that the Grand Old Party needs to fashion itself more in TR’s image and less in Barry Goldwater’s and Robert Taft’s. The creed of these modern-day conservatives intentionally echoes Roosevelt’s: “It is not my intention to do away with government,” he said in his first inaugural address. “It is, rather, to make it work.”


Daniel Drezner Sells Out (and Good for Him):

Starting January 5, Daniel Drezner's blog will move to its new home at Despite his new sponsorship, he promises to maintain his editorial independence, even if it means whacking Jennifer Palmieri with a two-by-four.


A Climate Deal for Conservatives:

In today’s New York Times, Rep. Bob Inglis (R-SC) and supply-side guru Arthur Laffer propose a new carbon tax to be offset by reductions in other taxes, such as income and payroll taxes. I think this is a good idea (and not just because I have endorsed it before).

Conservatives, even those vehemently opposed to GHG controls, should like this deal because it is substantially better than the status quo. As a consequence of Massachusetts v. EPA, the Environmental Protection Agency will be required to regulate GHGs, and not just from motor vehicles. The EPA has affirmed the potential negative consequences of climate change too many times for it to avoid making the endangerment finding that triggers regulation under several Clean Air Act provisions. As a consequence, it is only a matter of time before agency is mandated to control such emissions from new motor vehicles and a wide range of other sources, including power plants, factories, and perhaps even non-industrial buildings. Such regulation would be tremendously costly, but not terribly cost-effective, and thus much worse than a revenue-neutral carbon tax. A tax trade of this sort is also the best chance conservatives have to enact pro-growth tax cuts in the current environment.

Advocates of a cap-and-trade system should also support this sort of proposal. Some like to think that the Obama administration could enact a cap-and-trade system under the Clean Air Act through administrative fiat. This is sheer fantasy. The Clean Air Act is not that flexible, and any idea to the contrary should have been dashed when the U.S. Court of Appeals invalidated the Bush Administration’s effort to create a regional cap-and-trade regime for other pollutants. The most prominent cap-and-trade program, that for acid rain precursors, was enacted by Congress. Legislative change will also be required for an equivalent GHG control regime.

The primary reason to oppose carbon taxes is the potential political cost. No politician wants to be on record supporting a tax increase. Yet the sort of cap-and-trade scheme endorsed by President-elect Obama will have the same effect as a new tax. Indeed, it’s likely to be worse because a cap-and-trade system will be particularly vulnerable to special interest pleading that will increase its costs and reduce its effectiveness. Capping the most ubiquitous by-product of modern civilization will be a tremendously costly enterprise. If it is to be done, it must be done as efficiently as possible.

With a deal of the sort Inglis and Laffer propose, a carbon tax might not be the political poison pill that some fear. Offsetting the tax with other reductions would offset the negative economic consequences of taxing carbon. Moreover, if the promise of pro-growth tax cuts could lure enough Republicans to support the plan, Congressional Democrats would have political cover to enact an ambitious plan. So, if the Obama Administration wants to enact a transformative climate change policy, trading a carbon tax for tax breaks could be a way to do it.

Related Posts (on one page):

  1. Exxon CEO and Climate Alarmist Agree:
  2. A Climate Deal for Conservatives:

A Holiday Gift for EPA:

This past week, the U.S. Court of Appeals for the D.C. Circuit gave the Environmental Protection Agency a little Christmas present. On rehearing in North Carolina v. EPA, the court agreed not to vacate the Bush Administration’s Clean Air Interstate Rule (CAIR), an ambitious effort to create a regional emission trading regime for several conventional air pollutants. In its initial decision, the court invalidated CAIR due to “more than several fatal flaws in the rule.” On rehearing, at the request of the EPA, environmentalist groups and several states, the court reaffirmed its substantive holding, but then remanded CAIR without vacatur so as to “temporarily preserve the environmental values” the rule was supposed to advance.

On remand, the EPA will have its work cut out for it. CAIR was always a bit of a gamble. While there is a strong policy case for a regional trading system, it was never clear such a system could be created under the existing Clean Air Act. Indeed, the Bush Administration’s original plan was to create the trading system as part of a legislative package to amend the Clean Air Act. It was only after legislative efforts failed that the Bush EPA sought to implement the policy administratively.

The court’s decision likely leaves the Obama EPA few options. I am skeptical that a regional trading system can be adopted without legislation. The court’s decision also highlights the difficulty the Obama EPA would have were it to try and create a greenhouse gas emission trading system administratively. The Clean Air Act is a heavily prescriptive statute, and it does not leave that much room for administrative innovation.

In the meantime, the Bush EPA can savor this little bit of legal relief. While CAIR may not be legal, it is one of the few Bush air pollution regulations that will still be on the books when they leave office.

UPDATE: Penn State-Dickinson's Jamie Colburn likewise thinks the CAIR experience discredits the idea that EPA should design a cap-and-trade system for greenhouse gases (and, like my post above, would prefer fees to tradable permits).


40 Inspirational Speeches in 2 Minutes: Tim Sandefur sends along the following clip that should get you going today:

Related Posts (on one page):

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

Sunday Song Lyric: TV on the Radio's Dear Science seems to be the consensus pick for "album of the year," having received this honor from Rolling Stone, Spin and others. I like this band, and enjoyed seeing them open for the Yeah Yeah Yeahs a few years back, I haven't picked this one up yet, but I suppose I'll have to. Here's a taste of the lyrics from one of the singles "Golden Age":
The age of miracles
The age of sound
Well there's a Golden Age
Comin' round, comin' round, comin' round

Give it up
'stead of grabbing for decay
What we viewed as gold
I believe pollutes this space
And its grace ascending
Like a snake up your tree
Up your happy ending understanding
All your s'pposed to be
The full lyrics are here, and the video is here.

At year's end, I'd also be curious what VC readers think were the best albums, songs, or lyrics of 2008. Leave your suggestions in the comments.