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Saturday, February 21, 2009

New war, new legal issues...

In the words of the Times:

The missile strikes on training camps run by Baitullah Mehsud represent a broadening of the American campaign inside Pakistan, which has been largely carried out by drone aircraft. Under President Bush, the United States frequently attacked militants from Al Qaeda and the Taliban involved in cross-border attacks into Afghanistan, but had stopped short of raids aimed at Mr. Mehsud and his followers, who have played less of a direct role in attacks on American troops.

The strikes are another sign that President Obama is continuing, and in some cases extending, Bush administration policy in using American spy agencies against terrorism suspects in Pakistan, as he had promised to do during his presidential campaign. At the same time, Mr. Obama has begun to scale back some of the Bush policies on the detention and interrogation of terrorism suspects, which he has criticized as counterproductive.

Mr. Mehsud was identified early last year by both American and Pakistani officials as the man who had orchestrated the assassination of Benazir Bhutto, the former prime minister and the wife of Pakistan’s current president, Asif Ali Zardari. Mr. Bush included Mr. Mehsud’s name in a classified list of militant leaders whom the C.I.A. and American commandos were authorized to capture or kill.

The war against al Qaeda and the Taliban then-government-now-insurgency in Afghanistan has become a war against Taliban insurgents in Pakistan. These insurgents have a loose alliance with the Taliban in Afghanistan, but different aims and priorities—namely, to overthrow the Pakistani government rather than to overthrow the Afghan government. There is a nice legal question whether President Obama has initiated or accelerated a “new” war against the Taliban-in-Pakistan or is merely carrying on an “old” war against Al Qaida and the original Taliban albeit in a neighboring country. This nice legal question poses some challenges to Obama’s new legal team:

1. Is this new war in Pakistan undertaken pursuant to statutory authority or on the basis of the president’s commander-in-chief power (or both)? The only relevant statute on the horizon is the much-criticized-as-excessively-broad AUMF of 2001, which authorized hostilities against al Qaeda and related organizations in Afghanistan (“those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”). Does the Obama administration read this statute as authorizing intervention in a civil war in Pakistan?

2. If not, is the new war in Pakistan undertaken pursuant to the president’s commander-in-chief power? And, then, what of the War Powers Resolution, which applies to the “introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations”? Under this law, the president must inform Congress and seek its consent. When can we expect this to happen?

Fortunately, Obama’s nominee for head of OLC, Dawn Johnsen, has announced a new era of openness, and so the OLC’s legal judgments on these important issues will arrive soon. How she will reconcile disclosure of an OLC memo that provides the legal justification for the military intervention in Pakistan with the Obama administration’s refusal to officially acknowledge this “covert” action remains to be seen.

Update:

I have deleted a comment that denigrated a public figure in an offensive way. Because I don’t have the time to monitor comments on a regular basis, and am not willing to provide a vehicle for further disparagement of public figures, journalists, academics, and others, I will disable the commenting function for future posts until a solution to this problem is reached. This is deeply unfortunate but I see no alternative.

46 Comments

Big Hollywood Live Blogs the Oscars: For those who still watch the Academy Awards ceremony, as I do, but who would find it a little easier to take with a running commentary, Big Hollywood--the new libertarian and conservative show-biz blog--will be live-blogging the Oscars tomorrow night. To date, I am finding Big Hollywood to be a mixed bag as a blog. Although some posts are great, others are a bit too long for blog posts and read a more like magazine articles or op-eds. Not that there is anything wrong with that, but blogging as a publication form has evolved into a combination of pithiness and reaction to events. Blog posts are not the best vehicles for stand alone essays (though I have certainly attempted them at times). And I find some of the posts there to be a little preachy. My suggestion would be to make the blog a bit punchier and reactive to news stories--entertainment and otherwise--but to each his own. It takes a while for a successful blog site--especially a group blog--to find its voice. At any rate, I suspect that a live blog of an ongoing event like the Oscars might be just the right format for the group at Big Hollywood. I will sample it tomorrow night and see.

Kindle 2 Speech:

There's an interesting little copyright kerfuffle afoot in regard to the release of version 2 of Amazon's Kindle e-book device. The Kindle 2 incorporates a "text-to-speech" function; that is, for books that you download onto your Kindle, a function is provided whereby you press a button and the device translates the text into computer-generated speech.

Cool stuff. The Author's Guild, on behalf of book authors, is not so enthusiastic. It is asserting -- thus far, only in public statements, and not in any court proceedings, though they may come -- that the Kindle 2 functionality infringes the copyright holder's rights to create "derivative works," and, therefore, is not within the license granted by authors to amazon to distribute their works on Kindles. [The National Federation of the Blind, incidentally (and for obvious reasons), disagrees]

It's a knotty copyright issue, actually -- though I'm reasonably certain that Amazon has the better of the argument. Here's how it looks to me. Amazon already has the right to "reproduce" and "distribute" the books it sells in Kindle format -- under the terms of which the copyright holder gets a royalty for each reproduction/distribution. So far so good. The license covers reproduction and distribution only; it does not give Amazon the right to "publicly perform" the copyrighted work, or to "create derivative works" based on the copyrighted work.

A sound recording of the book -- an "audiobook" -- is, clearly, a "derivative work" under copyright law. In the Copyright Act, a "derivative work" is defined to include "sound recordings . . . or any other form in which a work may be recast, transformed, or adapted," and "sound recordings," in turn, are defined as "works that result from the fixation of a series of musical, spoken, or other sounds." Because the audiobook "fixes" sounds (onto a CD, or a computer disk, or some other tangible medium), it's a derivative work. So when Audible.com sells you an audiobook copy of a book, they need a "derivative works" license from the copyright holder.

Pre-Kindle 2, in other words, copyrightholders have two separate sources of licensing revenue: Amazon (for the reproducing and distributing copies their book) and Audible (for making "sound recordings" = "derivative works" based upon their book).

Along comes Kindle 2. There's no "audiobook" involved in the Kindle transaction. The copy that customers receive is just the (marked-up) text, in Kindle format - same as before. The sounds are generated on-the-fly when the user presses the right button -- the sounds aren't "fixed" anywhere, i.e. they're not stored separately from the text itself. Therefore, no sound recording; therefore, no derivative work; therefore, no additional royalty revenue for the copyrightholder.

There may be more to it than this - the Author's Guild may be able to come up with an argument that the generation of the sounds, while not a "sound recording," nonetheless creates a derivative work because it "recasts, adapts, or transforms" the original work into a new medium. There are some messy precedents out there on which they may be able to rely to make this argument. I doubt it, though. They face a very difficult slippery slope -- if Amazon needs a separate license because Kindle 2 is creating a derivative work, then presumably so does everyone who reads a book out loud, even to him/herself. That looks a little harsh to me, and I very much doubt that that's the law.

53 Comments

Obama Administration Still Defends State Secrets:

Via How Appealing comes this interesting story:

The Obama administration filed an emergency request with a federal appeals court Friday to stop a judge in San Francisco from allowing lawyers challenging the government's wiretapping program to see a classified surveillance document.

The document is the central evidence in the last remaining lawsuit over the legality of former President George W. Bush's 2001 order for the National Security Administration to intercept phone calls and e-mails between Americans and suspected terrorists in other nations.

And more from CQ's Legal Beat:

The Justice Department has filed an emergency stay motion at the 9th Circuit, asking it to freeze a district judge's order in a lawsuit challenging the legality of President Bush's warrantless surveillance program.

"Disclosure of the material at issue here would cause exceptionally grave harm to the national security and result in irreparable injury to the United States," Justice Department lawyers wrote in their brief. The Obama administration's stance is all the more striking because the immediate question is whether the plaintiffs in the case can have access to classified material they have already seen.

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Obama's Gitmo No Gulag:

The Washington Post reports:

A Pentagon review of conditions at the Guantanamo Bay military prison has concluded that the treatment of detainees meets the requirements of the Geneva Conventions but that prisoners in the highest-security camps should be allowed more religious and social interaction, according to a government official who has read the 85-page document.

The report, which President Obama ordered, was prepared by Adm. Patrick M. Walsh, the vice chief of naval operations, and has been delivered to the White House. Obama requested the review as part of an executive order on the planned closure of the prison at the U.S. naval base at Guantanamo Bay, on the southeastern tip of Cuba.

In the past, objecting to a Gitmo-Gulag comparison was evidence of a "withered moral sensibility," but I suspect we're allowed to reject such false equivalencies now.


U.S. Clears Way for Mercury Treaty:

The United States has dropped its opposition to an international treaty limiting mercury emissions, prompting agreement by over 140 nations to negotiate such a treaty.

Formal negotiations will begin late this year, and U.N. officials hope to conclude the talks by 2013. The White House issued a statement saying a future treaty would use "a combination of legally binding and voluntary commitments" to cut mercury emissions from industrial processes as well as coal-fired power plants and small-scale mining. . . .

A range of industrial activities, including the production of chlorine and the burning of coal, release mercury, which then falls to the earth and the sea in precipitation. The neurotoxin accumulates in fish and marine mammals in the form of methylmercury, which poses a threat to humans when consumed.

While the majority of mercury exposure in the United States stems from non-domestic emissions, all 50 states have issued mercury contamination advisories for fish in their waters. Marine mammals eaten by native Arctic peoples, such as pilot and beluga whales, have mercury concentrations that exceed recommended levels.

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Telling the Kelo Story - Jeff Benedict's Little Pink House:

People interested in property rights issues generally or Kelo v. City of New London specifically should definitely read Jeff Benedict's new book, Little Pink House. Kelo generated a broader political backlash than any other modern Supreme Court decision, and Benedict's book is by far the most thorough account of the development project and condemnations that led to case.

Benedict doesn't focus much on the legal issues involved, which have already been beaten to death by a small army of legal scholars (myself included). He does, however, provide an in-depth account of New London's decision to condemn the plaintiff's homes and other property in order to promote "economic development" and the course of the political and legal struggle between the two sides. Although Benedict's sympathies are clearly with the property owners, he also conducted numerous interviews with the lawyers and officials on the other side, so their perspective gets extensive coverage in the book. For example, he provides a fascinating portrait of Claire Gaudiani, president of Connecticut College and of the New London Development Corporation - the quasi-governmental entity that decided to go forward with the condemnations.

Several aspects of Benedict's account are especially relevant to the broader debate over eminent domain sparked by Kelo.

First, Benedict establishes that the NLDC and state government officials who undertook the condemnations genuinely believed that they were serving the public interest and did not see themselves as advancing the objectives of the Pfizer Corporation which played a key role in instigating the takings and stood to benefit from them at the expense of the general public. I don't find this as comforting as many Kelo defenders seem to. As I have pointed out in various articles (e.g. - this one), most people have a strong tendency to convince themselves that anything that serves their self-interest or political advantage is also in the public interest. For example, I fully accept that Gaudiani believed that the Kelo takings would benefit the community and advance the cause of "social justice," as she put it. But I am skeptical that she reached these conclusions entirely uninfluenced by the fact that her husband was a Pfizer vice president, and that successful implementation of the project would have advanced her own career. The understandable human tendency to conflate one's own interest with the public interest undercuts the viability of proposals to distinguish between permissible and impermissible takings by focusing on the intent of government officials in order to determine if they were motivated by "favoritism" (as advocated by Justice Kennedy in his Kelo concurring opinion).

Second, the book shows the ways in which the targets of condemnation are often determined by their political weakness. Although the NLDC publicly insisted that their economic development project required the government to take over every bit of the targeted Fort Trumbull neighborhood, in fact the pattern of condemnations was largely driven by the political influence or lack thereof of the property owners involved. One of the best parts of Benedict's book describes how the NLDC decided to spare property belonging to the Italian Dramatic Club - an all-male social club that had a lot of clout in New London politics in part because many local elites were members. Susette Kelo and her neighbors (most of whom were working or lower middle class) lacked similar influence and so were out of luck. More generally, the book shows the great difficulty of resisting eminent domain when those targeted are relatively lacking in political influence. Although Kelo and the other targeted property owners put it an enormous effort and were aided by experienced political activists, they couldn't make any political headway in resisting the condemnations until the Institute for Justice - a prominent libertarian public interest firm - filed a legal case on their behalf and helped bring the case to the attention of the national media. Their experience illustrates the limits of the political process as a means for protecting the property rights of the poor and politically weak. Few targeted property owners are as persistent and determined as Susette Kelo, and fewer still have the good fortune to attract extensive media attention to their plight. These realities weaken claims that we don't need judicial intervention or new laws limiting eminent domain authority because individual property owners can protect their rights in the political process on a case by case basis.

Benedict also does an excellent job of portraying the human cost of going through an eminent domain case. Kelo and the other targeted property owners had their lives severely disrupted for several years, as they waited to see whether they would lose their homes. Perhaps even worse, the NLDC and the City subjected them to a variety of petty harrassment in order to force them to give in, including trying to charge them rent for living in their own homes, blowing up buildings on nearby lots (thereby spreading debris and dust on the resisting owners' land), and attempting to force out one of the owners' tenants in order to cut into his income. Realistically, few property owners of modest means can afford to go through such an ordeal. Moreover, the New London owners had the immense advantage of getting excellent pro bono legal representation from the Institute for Justice; they might not have been able to engage in a prolonged legal battle otherwise. Such problems cut against claims that eminent domain abuse can be prevented by granting property owners stronger procedural rights. To the contrary, the longer and more complicated the legal procedures for eminent domain, the greater the cost of going through them for owners and the greater the incentive to give in to the government's demands rather than resist.

Finally, Benedict highlights an often-overlooked aspect of Kelo-style "economic development" takings: their all too common failure to actually produce the economic development that supposedly justified them in the first place. As he points out, almost four years after the legal battle ended and nearly ten years after the NLDC's development project began, the City still hasn't built anything on the condemned land and there is no prospect of doing so anytime soon. So far, the net result of the NLDC's condemnation efforts has been to destroy an entire neighborhood and waste some $80 million in public funds. The failure of the Kelo condemnations to actually benefit the local economy is a predictable result of the perverse incentives facing the NLDC and other similar agencies.

Benedict's book does have a few shortcomings. In several places, he misstates a few of the legal issues involved in the case. For example, he claims that the Kelo decision "changed the rules" in favor of a more permissive standard for condemnations. In reality, as I explained in this article (pp. 224-25), previous Supreme Court precedent was so lax as to allow the government to condemn virtually any property for virtually any reason. The true effect of Kelo was not a "change in the rules," but heightened public awareness of the gross abuses permitted by existing legal doctrine.

Despite a few such errors, Little Pink House is an impressive account of the events leading up to the most controversial property rights decision in Supreme Court history.

CONFLICT OF INTEREST WATCH: As I have pointed out in previous posts about Kelo, I wrote an amicus brief in the case on behalf of the late Jane Jacobs, a famous urban development scholar. I also have done various pro bono work for the Institute for Justice in other eminent domain cases.

Related Posts (on one page):

  1. Dahlia Lithwick Reviews Little Pink House - Jeff Benedict's book on Kelo v. City of New London:
  2. Telling the Kelo Story - Jeff Benedict's Little Pink House:
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Friday, February 20, 2009

Shorting the Stimulus:

George Bittlingmayer and Tom Hazlett look at the market response and conclude that investors don't think it'll work.

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Gay Conservatives:

Interesting post by the Gay Patriot: "It’s easier to be gay among conservatives than it is to be conservative among gays."

275 Comments

Scholarly Impact of the VC's Untenured "Faculty":

Just for fun, I measured the scholarly impact of the VC untenured "faculty" (David Kopel, Sasha Volokh, and myself) using Brian Leiter's recent scale discussed in David Bernstein's post. With a "scholarly impact" of approximately 183 (mean 168, median 198), we would rank tenth on Leiter's scale (which of course only considers tenured professors), just ahead of the tenured faculty at the University of Pennsylvania and UC Irvine (170), and just behind Michigan (185). Our median citation count would rank seventh, just behind Columbia; our mean falls just outside the top ten.

I don't claim any great scientific validity for this "study." Comparing a group of three lawbloggers to the average score for the top ten tenured faculty at various law schools isn't really good methodology. But it's a mildly interesting result nonetheless.

Related Posts (on one page):

  1. Scholarly Impact of the VC's Untenured "Faculty":
  2. Rating the Scholarly Impact of the VC "Faculty":
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Why Conservatives Opposed the New Deal? Greed!:

"For many of those who voiced fear of the New Deal's threats to liberty, including the conservative Liberty League, the concern about personal freedoms was a mere facade for greed. Not so for [Learned] Hand." Gerald Gunther, Learned Hand 436 (1994).

I get it! When "conservatives" expressed concern about the growth of government threatening liberty, it was really a mask for greed. When a "progressive" like Hand expressed similar concerns, however, it was because of a deep and abiding regard for individual rights.

Sheesh!

Unfortunately, this sort of overt contempt for "conservatives" and their perspective is extremely common in histories of the New Deal period.


Obama Administration Adopts (At Least for Now) The View that Bagram Detainees Have No Habeas Rights: The BLT has the scoop. From the statement of Acting Assistant Attorney General Michael Hertz:
"This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position."
  As the BLT indicates, though, "President Obama has ordered a task force led by the attorney general and the defense secretary to review overall policy on detainees. A report is due in six months. A Justice Department spokesman declined to speculate on whether the government's position may change following the review." Stay tuned.
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California Violent Video Game Law Held Unconstitutional,

by the Ninth Circuit in Video Software Dealers Ass'n v. Schwarzenegger. The statute barred selling or renting "violent video games" to minors, and defined violent video games this way:

(d)(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
On appeal, California conceded that the subsection (B) definition is unconstitutional, and focused on (A), which essentially borrows the "obscene as to minors" test -- which was upheld by the Supreme Court, in a slightly different form, for sexually themed expression -- and tries to adapt it to violent video games. No dice, the court says (in my view, quite correctly, and consistently with generally similar decisions from the Second, Sixth, Seventh, and Eighth Circuits):
We decline the State’s invitation to apply the variable obscenity standard from Ginsberg to the Act because we do not read Ginsberg as reaching beyond the context of restrictions on sexually-explicit materials or as creating an entirely new category of expression -- speech as to minors -- excepted from First Amendment protections. As the Act is a content based regulation, it is subject to strict scrutiny and is presumptively invalid. Under strict scrutiny, the State has not produced substantial evidence that supports the Legislature’s conclusion that violent video games cause psychological or neurological harm to minors. Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the State’s purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls.
The court also struck down the requirement that "violent video games" be labeled with a prominent "18" label.

45 Comments

New Filing in Lori Drew Case: Readers following the Lori Drew case will recall that District Judge Wu held oral argument on the motion to dismiss back on January 8. Judge Wu has not yet handed down his ruling. However, this morning we filed the following Supplement to our Rule 29 Motion in light of recent caselaw developments.
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Rating the Scholarly Impact of the VC "Faculty":

Brian Leiter has posted a new study of the "scholarly impact" of top law school faculties in the U.S.

Using the same methodology as Brian Leiter's recent survey, and including regular VC bloggers except for Ilya and Sasha, who are not yet tenured (and therefore would be excluded under the Leiter methodology), David Kopel, who is not a law professor, and Paul Cassell, who was busy serving as a federal judge until recently,* the "mean scholarly impact" of VC bloggers is 530, which beats every law school in the country. The "median scholarly impact" is 330, which beats everyone but Yale.

* The list is thus Adler, Barnett, Bernstein, Carpenter, Kerr, Lindgren, Posner, Post, Volokh, and Zywicki. Adding Paul Cassell to the list would not substantially change the results.

Related Posts (on one page):

  1. Scholarly Impact of the VC's Untenured "Faculty":
  2. Rating the Scholarly Impact of the VC "Faculty":

Bloggers disagree on Obama and Congress Republicans; agree that Congress Dems are not stellar:

This week's National Journal poll of leading political bloggers asked for grades for performance thus far of President Obama, House Republicans, and House Democrats. For Obama, the Left awarded a B, and the Right a D. I was one of the D voters, with this comment: "'Stimulus' was a bait-and-switch which broke Obama's promises of transparency. Moving the census to the White House from Commerce is Chicago-style sleaze. When I voted for Obama over Clinton in the Colorado caucus, I was mistaken to think the result would be cleaner government."

For the House Republicans, the grades were reversed, with the the Left giving a D and the Right giving a B. I gave them an A: "United against intergenerational theft and reckless deficit spending. Too bad they didn't do the same under Bush."

Grades were somewhat closer on Congressional Democrats. The Left said C+, while the Right said D. My comment: "Spending other people's money like sailors on shore leave. Waxing indignant about mortgage woes and greed while leaving Rangel, Frank and Dodd in chairmanships. At least they get an A+ for chutzpah."

99 Comments

Thursday, February 19, 2009

Obama's Popularity Not Enough to get European Allies to Send More Troops to Afghanistan:

Many people, myself included, hoped that Barack Obama's popularity abroad would enable the administration to get increased cooperation from our allies, thereby making key US foreign policy objectives easier to achieve. These hopes took a major blow recently when European NATO allies rejected the Administration's call to send more troops to Afghanistan:

US hopes of securing more troops for Afghanistan from its Nato allies were disappointed on Thursday as European countries refused to offer up many more soldiers despite pleas from Robert Gates, US defence secretary.

At a two-day meeting of Nato defence ministers in the Polish city of Krakow, Mr Gates said the new US administration “is prepared to make additional commitments to Afghanistan. But there clearly will be expectations that the allies must do more as well”....

However, other Nato allies, which have about 30,000 soldiers in Afghanistan, were prepared to offer only several hundred more to help secure the country during forthcoming elections...

During the campaign, Obama repeatedly emphasized that the Bush Administration had dropped the ball in Afghanistan and argued that it was imperative to send more troops there. He has made an Afghanistan "surge" the focal point of his War on Terror strategy. The fact that the European allies felt free to reject his pleas on this major priority at the very time when his popularity abroad is at its post-Bush peak is a very bad sign.

It's important not to paint the allies with too broad a brush. Some of them, such as Canada (2700 troops) and Poland (1600), have contributed combat troops out of proportion to their relative resources. It's understandable that these states don't want to give more. However, the big continental European states, including France (3300) and Germany (3500), have contributed very small forces relative to the size of their economies and populations, and have refused to allow even these limited contingents to actually be used in combat. Note that Canada and Poland (whose troops are deployed in the more dangerous eastern part of the country where combat operations are ongoing) have contributed almost two thirds as many troops as France and Germany, despite the fact that the latter have more than double the combined population of the former.

The allies' refusal to heed Obama's plea for more troops highlights the limitations of personal popularity as a tool for influencing allied policy. It also suggests that US-European differences over defense policy go beyond understandable anger over the flaws of the Bush Administration.

UPDATE: I can't put the point much better than NATO Secretary General Jaap De Hoop Scheffer of the Netherlands:

NATO's exasperated secretary general, Jaap De Hoop Scheffer, said if Europe wants a greater voice, it needs to do more.

"The Obama administration has already done a lot of what Europeans have asked for including announcing the closure of Guantanamo and a serious focus on climate change," he said. "Europe should also listen; When the United States asks for a serious partner, it does not just want advice, it wants and deserves someone to share the heavy lifting."

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Jane Galt Rants:

Megan McArdle is on a roll discussing what we do, and do not, know about what really ended the Great Depression. See here, here and here. These posts remind me why she is one of my favorite bloggers.


Is There a RAT in the Stimulus?

Byron York reports on a brewing controversy over a little-noticed provision in the stimulus bill to create the Recovery Accountability and Transparency (RAT) Board. This entity would, among other things, have some degree of oversight over agency inspectors general and the Board's chair would be appointed by the President. According to Senator Charles Grassley (R-IA), this provision was "snuck in" and "strikes at the heart of the independence of inspectors general.”

What seems to have some upset is that the Board will have authority to request that "an inspector general conduct or refrain from conducting an audit or investigation." At first blush, this would seem to give the White House the ability to inhibit IGs from conducting independent oversight of agency functions. But after looking at the relevant provision, I am skeptical. Here's the text:

SECTION 1527: INDEPENDENCE OF INSPECTORS GENERAL

(a) Independent Authority- Nothing in this subtitle shall affect the independent authority of an inspector general to determine whether to conduct an audit or investigation of covered funds.

(b) Requests by Board- If the Board requests that an inspector general conduct or refrain from conducting an audit or investigation and the inspector general rejects the request in whole or in part, the inspector general shall, not later than 30 days after rejecting the request, submit a report to the Board, the head of the applicable agency, and the congressional committees of jurisdiction, including the Committees on Appropriations of the Senate and House of Representatives. The report shall state the reasons that the inspector general has rejected the request in whole or in part. The inspector general’s decision shall be final.

It seems to me that this language adequately protects IG independence. While I suppose some IGs might find it to be a hassle to have to respond to a Board request, the facts that the IG's decision is "final" and that the IG's response to any RAT request will be widely distributed would suggest this provision is as likely to discourage White House meddling as it is to discourage effective IG oversight. Moreover, given that the Board will be dominated by IGs from various departments, I doubt the Board will be subject to much White House control. So while I am not sure why it was necessary to create the RAT Board in the first place, I don't see what all the fuss is about.

UPDATE: Government Executive reports on the story here. Apparently the language of this provision as initially proposed by the White House did threaten IG independence, before being neutered in Conference.

22 Comments

Orin Misses the Key Fact!

That's UCLA School of Law graduate Phillip Carter who's being considered for deputy assistant secretary of defense for detainee affairs.

Related Posts (on one page):

  1. Orin Misses the Key Fact!
  2. Another Blogger for the Administration?:
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Climate Change Policy: The Path Ahead

The NYT's Room for Debate blog has posted a series of commentaries on the EPA's decision to reconsider whether greenhouse gases must be regulated under the PSD provisions of the Clean Air Act. In addition to your humble blogger, contributors include Robert Hahn and Peter Passell, Nina Mendelsohn, and John D. Graham and Kenneth R. Richards.

My contribution was edited for space, so I've posted the full essay below.

Related Posts (on one page):

  1. EPA to Regulate GHGs:
  2. Climate Change Policy: The Path Ahead
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Another Blogger for the Administration?: From Al Kamen in the Washington Post: "There's talk that Phillip Carter, who used to write the popular Intel Dump blog for The Washington Post's Web site, is penciled in to be named deputy assistant secretary of defense for detainee affairs, overseeing such places as the Guantanamo Bay and Bagram detention facilities." I hope the talk is well-informed, and that the penciling in becomes more permanent. (Thanks to Adam White, a fellow Slate Convictions alumnus along with Phil and I, for the link.)

Related Posts (on one page):

  1. Orin Misses the Key Fact!
  2. Another Blogger for the Administration?:
11 Comments

Where Did the Idea of a "Constitution in Exile" Movement Come From?:

As long-time readers of this blog know, Randy, Orin, and I have spent many a post (e.g.) debunking the notion that there is a right-wing self-styled "Constitution in Exile" movement plotting to return the Supreme Court to its pre-New Deal constitutional jurisprudence.

Last time I blogged about this, a commenter asked a pertinent question: given that the only apparent source for this "movement" was an obscure, offhand use of the phrase "Constitution in Exile" by Judge Douglas Ginsburg in a book review in the low-circulation journal Regulation, how did liberal critics become convinced that such a movement exists?

I think I've stumbled upon the answer--Linda Greenhouse. Greenhouse wrote the following in the New York Times on May 28, 1995:

Recent events at the Court have moved that struggle to a new plane. Two 5-to-4 decisions in the last month suggest that a long-discarded set of constitutional principles — a "Constitution-in-exile," to use a phrase coined by one of its advocates, Judge Douglas H. Ginsburg of the Federal appeals court here — is about to assume its place at the table as a reincarnation of the Constitution that was.

Greenhouse made two errors here. First, there is no indication that there was a group of "Constitution in Exile" advocates out there, among who Judge Ginsburg was just one member. Second, as Orin has pointed out, Ginsburg actual criticized constitution in exilish thinking:

Ginsburg's alleged manifesto was a review of a book by David Schoenbrod arguing for the return of a strong nondelegation doctrine in constitutional law. The bit about the Constitutution in Exile is a two-sentence paragraph at the end of Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal, however; he is quite critical of it. Ginsburg's review argues that the answer to the policy concerns raised by excessive delegation is not constitutional law, but statutory law...

So, in the legal equivalent of the butterfly effect, sloppy (or perhaps tendentious and dishonest) journalism by a New York Times reporter leads to ridiculous claims over a decade later, such as that a McCain victory in 2008 would have led to a victory for "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile."

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A Crime To Ridicule Police Officers?

Yes, in Hattiesburg, Mississippi:

Sec. 16-1. Abusing policemen.

It shall be unlawful for any person to revile, abuse or ridicule any policeman of the city while in the discharge of his official duties. (Ord. 1504, sec. 1, 5-13-64; Ord. 425, sec. 1--2, 9-17-14)

Pretty clearly unconstitutionally overbroad, especially since I couldn't find any case that limited this to unprotected speech (such as fighting words, which is to say individually targeted insults that are reasonable likely to cause a fight). Even if limited to fighting words, it might still be unconstitutional under R.A.V. v. City of St. Paul. But without such a limitation, the matter is even more clear.

Judging by the archives of the Hattiesburg American, arrests for "ridiculing a police officer" (usually combined with other charges) are not uncommon, though I can't tell from the brief summaries exactly what the "ridicul[e]" consisted of.

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Public Opinion on the Supreme Court and Its Relevance to Voters: This Rasmussen Poll was conducted a few weeks ago, but I don't think it has been widely blogged. From a survey of 1,000 likely voters:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

64% What’s written in the constitution
27% By fairness and justice
9% Not sure

Does Barack Obama believe Supreme Court justices should decide cases based on what’s written in the Constitution and legal precedents or does he believe they should decide cases by a sense of fairness and justice?

35% What’s written in the constitution
38% By fairness and justice
27% Not sure

When it comes to how you voted for President in Election 2008, how important an issue was the type of Supreme Court Justices a candidate would appoint?

42% Very important
33% Somewhat important
16% Not very important
5% Not at all important
4% Not sure
Hat tip: Curt Levey.

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NAS Report on Forensic Science:

UCLA Law Prof (and co-author, with Bernstein and Kaye, of The New Wigmore: Expert Evidence) Jennifer Mnookin:

The National Academy of Sciences released a long-anticipated report Wednesday on the real world of forensic science — and the news is disturbing and downright ugly. Laboratories are woefully underfunded, and much of what passes for forensic "science" does not meet even minimal scientific standards. Yet, when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.

My thoughts on problems with forensic science and how to deal with them can be found here.

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Mr. License, You're Under Arrest:

From the BBC:

[A Mr. Prawo Jazdy] had been wanted from counties Cork to Cavan after racking up scores of speeding tickets and parking fines.

However, each time the serial offender was stopped he managed to evade justice by giving a different address....

"Prawo Jazdy is actually the Polish for driving licence and not the first and surname on the licence," read a letter from June 2007 from an officer working within the Garda's traffic division....

"Having noticed this, I decided to check and see how many times officers have made this mistake.

"It is quite embarrassing to see that the system has created Prawo Jazdy as a person with over 50 identities." ...

Go to the story for a photo of a Polish driver's license, which shows the placement of "Prawo Jazdy." Poles are apparently "Ireland's largest immigrant population."

Thanks to Language Log for the pointer.

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The Oklahoma Law Barring Employers from Disciplining Employees for Having Guns in Cars on Company Parking Lots

has been upheld by the Tenth Circuit, in Ramsey Winch Inc. v. Henry. The court of appeals rejected challengers' Takings Clause claim, Due Process Clause claim, and Occupational Health and Safety Act preemption claim.

The decision reverses a contrary federal trial court decision, and agrees with a federal trial court decision from Florida (Florida Retail Federation, Inc. v. Attorney General, 576 F. Supp. 2d 1281 (N.D. Fla. 2008)). Some excerpts:

Here, the Amendments conflict with no OSHA standard. Moreover, the Oklahoma Court of Criminal Appeals defined the Amendments as “public crimes” of general applicability “concern[ing] protection of the community as a whole rather than individual citizens.” Thus, while the Amendments may “have a ‘direct and substantial effect’ on worker safety, they cannot fairly be characterized as ‘occupational’ standards, because they regulate workers simply as members of the general public.” The district court’s decision interferes with Oklahoma’s police powers, and essentially promulgates a court-made safety standard -- a standard which OSHA has explicitly refrained from implementing on its own. Such action is beyond the province of federal courts.

In sum, the facts before us do not approach the level necessary to overcome “the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act.” We understand Plaintiffs may disagree with the wisdom of the Amendments. Our task, however, is not to second-guess the Oklahoma legislature, but rather to interpret the Congressional intent behind the OSH Act and its general duty clause. Accordingly, we hold that Congress did not clearly intend the OSH Act to preempt the Amendments....

A per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.... [T]he Amendments (1) apply to all property owners, not just Plaintiffs, (2) merely limit Plaintiffs use of their property, and (3) do not require Plaintiffs to deed portions of their property over to the state for public use.

Rather, the facts here are more analogous to Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In Pruneyard, California’s constitutional protection of free speech rights prevented owners of a private shopping center from prohibiting the circulation of petitions on the owner’s property. Despite the fact that individuals circulating petitions may have “physically invaded” the owner’s property, the Supreme Court held that California’s requirement that property owners recognize state-protected rights of free expression and petition “clearly [did] not amount to an unconstitutional infringement of appellants’ property rights under the Takings Clause.” As in Pruneyard, Plaintiffs have not suffered an unconstitutional infringement of their property rights, but rather are required by the Amendments to recognize a state-protected right of their employees. See id. at 81 (noting that the state may exercise its police power to adopt individual liberties more expansive than those conferred by the Federal Constitution). As such, we conclude that Plaintiffs have not suffered a per se taking.

Plaintiffs argue that, even if the Amendments are not a per se taking, a taking has nonetheless occurred under the standards set forth in Penn Central.... The major factors under the Penn Central [regulatory takings] inquiry are (1) “[t]he economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the governmental action.” ... First, the only economic impact cited by Plaintiffs is the general claim (located in a footnote of their brief) that allowing firearms onto an employer’s property inevitably increases costs linked to workplace violence. A constitutional taking requires more than an incidental increase in potential costs for employers as a result of a new regulation. Second, Plaintiffs do not assert any interference with their investment-backed expectations, and, therefore, “have failed to demonstrate that the ‘right to excludeothers’ is so essential to the use or economic value of their property that the state-authorized limitation of it amount[s] to a ‘taking.’” Third, the governmental action at issue here involves “public crimes” of general applicability “concern[ing] protection of the community as a whole rather than individual citizens.” Plaintiffs must expect “the uses of [their] property to be restricted, from time to time, by various measures newly enacted by the state in legitimate exercise of its police powers.”

[As to the Due Process Clause claim, w]e need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community. The very fact that this question is so hotly debated, however, is evidence enough that a rational basis exists for the Amendments. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (noting that if a regulation is fairly debatable, the legislative judgment must control). In addition to the Amendment’s purpose of increasing safety, one could argue that the Amendments are simply meant to expand (or secure) the Second Amendment right to bear arms. See Pruneyard, 447 U.S. at 81 (noting that the state may exercise its police power to adopt individual liberties more expansive than those conferred by the Federal Constitution). Because we cannot say the Amendments have no reasonably conceivable rational basis, Plaintiffs’ due process claim must fail.

Thanks to the indispensable How Appealing for the pointer.

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Why Isn't the Alleged Wife-Beheader Being Charged with First-Degree Murder?

After all, a lawyer friend of mine argues, a beheading suggests at least some amount of premeditation and deliberation, which is what our criminal law course taught is required for first-degree murder.

The answer is that the first-/second-degree murder line varies a great deal from state to state. Some allow a first-degree murder conviction based on evidence of even a few seconds' worth of premeditation and deliberation. Some require evidence of some time during which the person was calm -- as opposed to in a rage -- and premeditated and deliberated calmly. And some have a detailed list of circumstances that can justify a first-degree murder charge (especially if they use the first-/second-degree murder distinction to distinguish between generally death-penalty-eligible murders and other murders).

New York fits in the last category: New York Penal Law § 125.27 lists thirteen circumstances under which a murder can be charged as a first-degree murder, and it seems likely that none of these circumstances applies here.

Related Posts (on one page):

  1. Why Isn't the Alleged Wife-Beheader Being Charged with First-Degree Murder?
  2. The Italian-American Anti-Defamation League:
24 Comments

Police Officer Confiscates "Abort Obama, Not the Unborn" Sign,

but police department admits error and returns the sign:

The officer misinterpreted the sign as threatening, said Capt. Steve McCool, of the Oklahoma City Police Department, and took the sign, which read "Abort Obama, not the unborn."

Chip Harrison [the driver of the car from which the sign was removed] said his sign was to be interpreted as saying something like: Remove Obama from office, not unborn babies from the womb.

The [police] officers [initially] confiscated Harrison's sign and gave him a slip of paper that stated he was part of an investigation....

A bad decision on the officers' part, but a correct one on the higher-ups'.

The Secret Service also apparently visited Harrison and asked "to (walk through the house) and make sure [the driver] wasn't a part of any hate groups" (I quote Harrison here). "He said they interviewed him for about 30 minutes and then left, not finding any evidence Harrison was a threat to the president." This seems a bit heavy-handed.

At the same time, law enforcement is indeed entitled to investigate — and to ask people's consent for searches — based on nothing more than a hunch, or a sense that there's a very low probability that the subject of the investigation may have committed a crime or may be a planning to commit a crime. And such a hunch or felt probability might be based on what the subject is saying; if the statement is ambiguous, they may investigate to resolve the ambiguity. (I assume that the Secret Service was interested in whether Harrison belonged to groups that might be a threat to the President, not to "hate groups" in the more general sense.) I don't think there was any real ambiguity here, but the Secret Service is naturally and understandably pretty careful about such things.

Thanks to Prof. Jared Williams for the pointer.

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EPA Climate Regulation On Its Way:

On Tuesday, Environmental Protection Agency Administrator Lisa Jackson agreed to reconsider her predecessor's conclusion that greenhouse gas emissions are not subject to regulation under the Clean Air Act's "PSD" program which governs emissions from large power plants and industrial facilities. As the Washington Post and New York Times report, this is likely the first step toward the EPA's adoption of greenhouse gas emission controls under the Act. As the Times notes, EPA's Jackson has already asked her staff to prepare the necessary documentation for the legal finding that would trigger regulation -- regulation that (as I've argued before) is inevitable under current law.

Regulating greenhouse gases under the Clean Air Act will create a regulatory train-wreck. It will impose substantial costs, and yet fail to meet the President's ambitious emission reduction targets (80% by 2050). For this reason, many believe that the prospect of loosing the Clean Air Act on carbon dioxide (combined with the unleashing of the Endangered Species Act as a consequence of the polar bear listing) will encourage Congress to enact climate legislation. That's when the real fun will begin. If, as the President has suggested, Congress puts forward a cap-and-trade proposal, it will unleash a feeding frenzy of rent-seeking, as every conceivable industry and interest group seeks to protect its own or gain competitive advantage. This is one reason why I would prefer a revenue-neutral carbon tax, combined with policies to accelerate technological innovation and adoption -- but I'm not holding my breath.

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Only the Most Wise and Virtuous Need Apply:

From the Vermont Constitution of 1777:

The House of Representatives of the Freeman of this State, shall consist of persons most noted for wisdom and virtue, to be chosen by the freemen of every town in this State, respectively.

But much was expected of voters, too (emphasis added):

Every man of the full age of twenty-one years, having resided in this State for the space of one whole year, next before the election of representatives, and who is of a quiet and peaceable behavior, and will take the following oath (or affirmation), shall be entitled to all the privileges of a freeman of this State.

"I _________ ___________ solemnly swear, by the ever living God (or affirm in the presence of Almighty God) that whenever I am called to give my vote or suffrage, touching any matter that concerns the State of Vermont, I will do it so, as in my conscience, I shall judge will most conduce to the best good of the same, as established by the constitution, without fear or favor of any man."

Unselfish voters, wise and virtuous legislators -- not just a good idea, but legally required, though of course legal enforcement could be pretty difficult.

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State Representative Seeks to Repeal Arkansas Ban on Atheists Holding Public Office and Testifying in Court:

The Becket Fund for Religious Liberty is supporting Arkansas state Representative Richard Carroll's effort to repeal a state constitutional provision that bans any “person who denies the being of God” from holding public office or testifying in Court.

As the Becket Fund press release linked above points out, it is unlikely that this constitutional provision - or others like it still on the books in several other states - could actually be enforced. Any effort to do so would almost certainly be invalidated by the courts as a violation of the First Amendment. Nonetheless, repealing the law will have some symbolic value in signalling that the state government recognizes atheists as equal citizens of its own volition, and not merely when compelled to do so by the courts.

At the same time, it is important to remember that archaic legal restrictions are far from being the main obstacle to office-holding by atheists. Although atheists constitute some 3 to 9 percent of the American population and are a generally well off and well-educated group, there are no openly atheist members of Congress [correction: there has been exactly one such congressman in US history], governors, or cabinet members, and only a tiny handful of state legislators. The principal reason for this is the widespread public prejudice against them, which is greater than that against any other ethnic or religious group on which we have polling data. For example, as discussed in last link, some 53% of Americans would categorically refuse to vote for a "qualified" atheist candidate for president nominated by their own party, as opposed to 43% who would refuse to vote for a qualified gay candidate of their party, 38% who categorically refuse to vote for a Muslim candidate, 24% for a Mormon one, and single digits who refuse to vote for blacks, Catholics, or Jews. For reasons I went into in detail in this article and this series of posts, such blanket hostility to atheists is unjustified. A 2004 poll found that 51% of Americans think that “[i]t is necessary to believe in God in order to be moral and have good values."

Hostility towards atheists is perhaps the last form of crude religious prejudice still accepted by a majority of the American population. Repealing the Arkansas law and others like it won't change that. But it would be a small step in the right direction.

UPDATE: Actually, there is one openly atheist congressman - Pete Stark of California, whose public announcement about his atheism I blogged about in 2007. This made him the first openly atheist member of Congress in American history. As I pointed out at the time:

Stark's announcement is not much of a counterexample to my argument that atheists are severely discriminated against in the political arena . . . Stark is a well-entrenched incumbent in a heavily Democratic district and is probably nearing the end of his career (he is 75 years old). He therefore is running a much smaller political risk than would most other politicians if they made a similar statement. Although Stark's announcement has some symbolic value, this small step for an atheist is also a pretty small step for atheist-kind.

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"Hate Speech":

From a UCLA Chicano Studies Research Center study titled Hate Speech on Commercial Talk Radio:

Types of Hate Speech

We identified four types of speech that, through negative statements, create a climate of hate and prejudice: (1) false facts [including "simple falsehoods, exaggerated statements, or decontextualized facts [that] rendered the statements misleading"], (2) flawed argumentation, (3) divisive language, and (4) dehumanizing metaphors (table 1).

What a definition! And this is their example:
Table 1. Analysis of Hate Speech from The John & Ken Show

EXAMPLE
“And this is all under the Gavin Newsom administration and the Gavin Newsom policy in San Francisco of letting underage illegal alien criminals loose” (from the July 21, 2008, broadcast).

TARGETS
Vulnerable group: foreign nationals (undocumented people).
Social institutions: policy and political organizations (city policy and mayor’s office).

FALSE FACTS
The sanctuary policy preceded Gavin Newsom’s tenure as San Francisco’s mayor, and neither Newsom nor the sanctuary policy supports “letting underage illegal alien criminals loose.”

FLAWED ARGUMENTATION
Guilt by association is used to make the hosts’ point. Undocumented youth and those who are perceived as their endorsers at the institutional level are stigmatized by being associated with criminality.

DIVISIVE LANGUAGE
Criminalized undocumented youth and their perceived validators (Gavin Newsom and the sanctuary policy) are depicted as a threat to San Francisco citizens, setting up an “us versus them” opposition.

ANALYSIS The language depicts the hosts’ targets (undocumented people, city policy, and Mayor Gavin Newsom) as dangerous, criminal, and collusive. In addition, the focus of that policy (undocumented people) becomes reduced to “underage illegal alien criminals.”

So describing a policy as involving "letting underage illegal alien criminals loose" is now "hate speech" aimed not just at underage illegal alien criminals but at all "illegal alien[s]." The vagueness and potential breadth of the phrase "hate speech" is a pretty substantial reason -- though just one among many -- to resist the calls for a "hate speech" exception to the First Amendment. And the vagueness and potential breadth is also a reason to be skeptical of uses of the phrase even outside the law: It's very easy to define "hate speech" as you like (or leave it undefined, as some arguments do), and use it to condemn people who express a wide range of views that you disapprove of.

The National Hispanic Media Coalition seems to be using the study to buttress its call for an FCC investigation into "hate speech" against Hispanics. The NHMC asserts that it's not calling for restrictions on such speech or reintroduction of the Fairness Doctrine, but only wants the FCC to "collect[] ... information and data about hate speech in the media." Bt just on the page before it sys that "hate speech undermines the public interest," and that "hate speech that contains false and misleading information" could violate the FCC policy against "rigging or slanting the news." Such policy violations may lead to a station's losing its license, as would a finding that the station is disserving the public interest.

Even more likely, such findings (or likely future findings) by the FCC will often lead to a station's feeling pressured to stop such supposedly "misleading" "hate speech" in order to avoid even a modest risk of losing its license and thus losing its shareholders' investment. Given the degree to which "hate speech" has become a term in the legal debate and not just in discussions of morality or media ethics, labeling speech (especially speech on licensed broadcasters) as "hate speech" can trigger legal regulation and not just public condemnation.

Note, incidentally, that illegal entry into the U.S. is generally itself a federal crime, though usually a misdemeanor, and one that a minor may have a defense to if he is young enough when he enters; perhaps the radio broadcasters were making the claim that most illegal aliens are criminals simply by virtue of their illegal entry. Or perhaps not -- the study offers no context for the quote that can help readers see whether its critique of the quote is right, or whether the quote is itself a "decontextualized fact" that might paint a misleading picture of what the speakers were saying.

80 Comments

Wednesday, February 18, 2009

Constitutional Rights of Non-Citizens:

I've heard many people suggest that the Bill of Rights protects only citizens, and not legally admitted aliens. Some have argued that surely the Framers would not have understood the Bill of Rights as protecting noncitizens.

It turns out, though, that at least one pretty significant Framer -- that would be James Madison -- took the opposite view. Here's Madison, from his Report on the Virginia Resolutions, which criticized the Alien and Sedition Acts of 1798:

Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.

But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

The Supreme Court has endorsed Madison's view at least since Wong Wing v. U.S. (1896) as to the criminal procedure provisions, and in Yick Wo v. Hopkins (1886) (also unanimously) as to the Equal Protection Clause racial equality principle. Aliens might be deportable for their speech (see here for more on that question), but they can't be otherwise punished for it, nor can they be criminally prosecuted in the civil justice system without the normal constitutional protections. (The question of when military justice may be applied to them is a separate and complicated issue, and one that may potentially relate to citizens as well as aliens.)

Now I'm not a historian of the matter, and it may well be that the matter was unclear. Certainly Madison was arguing against people who took the contrary view; perhaps they were in the solid majority on this. But at the very least one shouldn't just casually assume that the Bill of Rights must of course apply only to citizens, when the principal drafter of the Bill of Rights took the opposite view.

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The Italian-American Anti-Defamation League:

The story of Muzzammil Hassan — "The founder of an upstate New York TV station aimed at countering Muslim stereotypes has been arrested on suspicion of killing his wife, who was beheaded, authorities said" — reminded a correspondent of the Italian-American Anti-Defamation League, which was founded by mafioso Joseph Colombo Sr.

And, yes, of course the great bulk of Italian-Americans consists of perfectly decent law-abiding citizens, as does the great bulk of American Muslims. It would just be nice if the heads of the groups didn't exemplify the very stereotypes the groups were aimed at fighting. (I should note that Hassan has of course not yet been convicted, though to my untutored eye things look bad.)

Related Posts (on one page):

  1. Why Isn't the Alleged Wife-Beheader Being Charged with First-Degree Murder?
  2. The Italian-American Anti-Defamation League:
63 Comments

"Needless Fears" at the NYT:

The NYT editorial board casually dismisses fears about implementation of the Consumer Product Safety Improvement Act, causing Overlawyered's Walter Olson to not-so-casually dismiss the NYT's editorial judgment.

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Sisay v. Smith:

Last week, in Sisay v. Smith, a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned a district court order enjoining the Cleveland Hopkins International Airport from enforcing new rules granting select taxicab companies the exclusive right to pickup passengers at the airport. Several small taxicab companies had challenged the rules on due process and other grounds. The panel divided on whether they had demonstrated a sufficient likelihood of success on their due process claim, and specifically over whether the plaintiffs could show they had been deprived of a constitutionally protected property interest when they were denied the right to pick up passengers from the airport.

I find the case interesting on the merits (I think it could make for a good AdminLaw hypo) and because I am a frequent user of Cleveland Hopkins airport. I am also curious as to why the Sixth Circuit opted to release this as an unpublished opinion. The opinion addresses a weighty issue at some length (43 pages all told), and produced a substantial dissent. Whatever the formal criteria for publishing an opinion of the Court, I would have thought this case fits. Apparently not.

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Punishment for Possessing Guns at Home While Dealing Drugs from Home:

The Seventh Circuit (in U.S. v. Jackson) upholds this against a Second Amendment challenge, in an opinion by Judge Frank Easterbrook.

The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection. Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home. The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash. Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders. That may be so, but his decision to operate an illegal home business also matters. Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.

I think this analysis is ultimately right, but the hypothetical involving the "Anyone who chooses to possess a firearm ..." statute doesn't advance matters much. Statutes that say "anyone who chooses to [exercise a constitutional right] is forbidden to [commit a certain crime]" — and the penalty is higher than the penalty for committing the crime while one is not exercising the constitutional right — might well not be constitutional.

Consider a different hypothetical: Say a federal statute (which had a penalty higher than that for simple fraud) said "Anyone who chooses to possess a firearm in the home for self-protection is forbidden to commit computer frauds at the office." Of course the government could and does forbid frauds. But it doesn't follow that it can impose extra punishment for committing fraud while exercising a Second Amendment right in a way unrelated to the fraud.

What's doing the work, I think, are the earlier sentences: "the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection," plus "The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash." The Constitution doesn't protect the use of guns in crimes, and even having the gun around when it materially facilitates the crime (as it does for the drug sale in the next room but not for the computer fraud at the office) is itself a form of use of guns.

Here's what I say related to this in a draft article on Implementing the Right To Keep and Bear Arms, which is forthcoming in several months in the UCLA Law Review; among other things, I focus on the doctrine developed by some state courts applying their state right-to-bear-arms provisions, including by courts that have indeed struck down some other government actions on state right-to-bear-arms grounds:

Many states ban possession of guns while possessing drugs or committing a crime....

The right to keep and bear arms in lawful self-defense doesn’t include the right to use those arms in a crime. [Footnote: See, e.g., D.C. v. Heller, 554 U.S. at __ (describing the Second Amendment right as being a right to possess guns for “traditionally lawful purposes”); United States v. Bowers, 2008 WL 5396630, *2 (D. Neb. Dec. 23); Cockrum v. State, 24 Tex. 394, 401-03 (1859); State v. Daniel, 391 S.E.2d 90, 97 (W. Va. 1990).] And this would include using the guns in ways short of firing or even brandishing them (for instance, by carrying them in case one wants to fire or brandish them, which might well embolden the criminal and deter others who know that this criminal is armed).

On the other extreme, keeping a gun for self-defense in a way that’s unconnected to the crime should generally be seen as the exercise of one’s constitutional right: Consider, for instance, a person who possesses a gun for home defense while engaged in consensual sex with someone under the age of consent, or while committing a fraud at work. [Footnote: See, e.g., Biddinger v. State, 846 N.E.2d 271, 278 (Ind. Ct. App. 2006) (holding that mere possession of a firearm may not be used as an aggravating factor at sentencing).]

One can hypothesize ways in which even this sort of gun possession could help one commit a crime, for instance to resist arrest in the event that one is caught, or to threaten witnesses or coconspirators should such a threat be necessary. But so long as such possible misuse of a gun is entirely speculative, and not part of either the defendant’s past behavior during the crime or clearly planned future behavior, those hypotheses shouldn’t suffice to turn constitutionally protected behavior into criminal behavior. And the exercise of constitutionally protected rights in ways that are unconnected with criminal conduct generally can’t be used to enhance the sentence for such criminal conduct. [Footnote: See, e.g., Dawson v. Delaware, 503 U.S. 159 (1992).]

This in fact is how many courts have analyzed this, in the “nexus” line of cases: When a gun is not possessed on the person, gun possession can only be treated as criminal or used to enhance a sentence if there is an adequate connection between the possession and the crime. [Footnote: State v. Gurske, 118 P.3d 333, 335 (Wash. 2005) (one in a long line of Washington state cases on the subject); State v. Blanchard, 776 So. 2d 1165 (La. 2001); People v. Atencio, 878 P.2d 147, 150 (Colo. Ct. App. 1994). See also Brewer v. Commonwealth, 206 S.W.3d 343, 347-48 (Ky. 2006) (relying partly on right to bear arms in holding that firearm may not be forfeited based on the owner’s conviction of a crime unless there’s a nexus between the firearm and the crime).]

In particular, “mere proximity or mere constructive possession is insufficient to establish that a defendant was armed at the time the crime was committed”: “[T]he weapon must be easily accessible and readily available for use,” “whether to facilitate the commission of the crime, escape from the scene of the crime, protect contraband or the like, or prevent investigation, discovery, or apprehension by the police.” [Footnote: Gurske, 118 P.3d at 335–36.] This test is far from perfectly clear, and needs more scholarly attention. But it seems like a reasonable first cut aimed at making sure that criminals are punished for their criminal behavior and not for their constitutionally protected behavior.

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If a Presidential Action Isn't Reported to the White House Press Corps, Does It Make A Sound?

Here's an interesting Politico story on the Obama Administration's inconsistent release of information on various Presidential actions.

In his first weeks in office, President Barack Obama shut down his predecessor’s system for reviewing regulations, realigned and expanded two key White House policymaking bodies and extended economic sanctions against parties to the conflict in the African nation of Cote D’Ivoire.

Despite the intense scrutiny a president gets just after the inauguration, Obama managed to take all these actions with nary a mention from the White House press corps.

The moves escaped notice because they were never announced by the White House Press Office and were never placed on the White House web site. . . .

A Politico review of Federal Register issuances since Obama took office found three executive orders, one presidential memorandum, one presidential notice, and one proclamation that went unannounced by the White House.

I don't see anything nefarious here, as none of these actions are the sort of thing that an Administration would want to hide. But it is nonetheless interesting that the White House has failed to announce significant policy actions, and even more interesting that this failure has meant that such actions go largely unreported in traditional news outlets.

In a related vein, the Administration has yet to follow through with its promise of "Sunlight before Signing" either. President Obama pledged delay signing all non-emergency legislation for five days so as to allow public examination and discussion. Yet President Obama signed both the Lily Ledbetter Fair Pay Act and S-CHIP extension within two days of passage. He waited a little longer to sign the stimulus bill, but that was supposed to be such an emergency that the House leadership would not keep their commitment to giving the public 48-hours to digest the bill before a vote was called.

These stories (and others) underscore the fact that it is much easier to promise greater sunlight and transparency than it is to deliver. Campaign promises notwithstanding, the Administration is likely to stumble along for a bit in this area. But as an advocate of greater government transparency, this is an area in which I hope the Administration regains its footing.

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Working Hard and Good Grades: I'm generally wary when the New York Times tries to tell its readers about what a "new generaton" thinks. What that important caveat, the NYT has an interesting article on how many college students feel that working hard should be taken into account in their grades, regardless of whether it leads to better performance. An excerpt:
  Nearly two-thirds of the students surveyed said that if they explained to a professor that they were trying hard, that should be taken into account in their grade.
  Jason Greenwood, a senior kinesiology major at the University of Maryland echoed that view.
  “I think putting in a lot of effort should merit a high grade,” Mr. Greenwood said. “What else is there really than the effort that you put in?”
  “If you put in all the effort you have and get a C, what is the point?” he added. “If someone goes to every class and reads every chapter in the book and does everything the teacher asks of them and more, then they should be getting an A like their effort deserves. If your maximum effort can only be average in a teacher’s mind, then something is wrong.”
  Sarah Kinn, a junior English major at the University of Vermont, agreed, saying, “I feel that if I do all of the readings and attend class regularly that I should be able to achieve a grade of at least a B.”
Hat tip: Prawfs.
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Born Libertarian Onesie: Wish this had been around when my kids were babies.

Born Libertarian



You can order yours here.

Hat tip: Laura Barnett.


Judges in Spain go on strike:

About 1,700 of Spain's 4,400 judges are going on strike, although they will continue to process some particularly urgent matters. Details here (in Spanish, from the excellent web newspaper ElDiarioExterior.com). The judges argue that they are underpaid and overworked; they want 1,200 new positions to be created over next five years, to move Spain closer to the European Union average, and to help with what the judges say are overflowing dockets. Comments are welcome from readers who know about the Spanish judiciary.

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Gitmo Deja Vu: Although it's date-stamped with today's date, I swear I have read this DC Circuit Gitmo decision before. It's an opinion by Judge Randolph, ruling against Guantanamo detainees seeking release, that downplays the Supreme Court's Gitmo cases and cites Johnson v. Eisentrager along the way. I can't quite place it. Did I read this in 2003, in the opinion reversed in Rasul? Or was it 2007, in the opinion reversed in Boumediene?

   Of course, the legal issue in today's case is different. Still, after Judge Randolph thumbed his nose at the Supreme Court in his Boumediene opinion, it seems hard not to notice the similarities. See Judge Rogers' concurrence for more.

  Thanks to Howard for the link. (Note to commenters: Based on past experience, threads on topics like this can bring out the worst in commenters. Passions run high, legal analysis tends to be weak, and accusations of hackery run amuck. If that happens here, I'll just delete the comment thread. Feel free not to comment if that possibility bothers you.)
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New Privileges or Immunities Clause Lawsuit Against Boston: This morning, the Institute for Justice brought a lawsuit against the City of Boston asserting its client's rights under the Privileges or Immunities Clause of the Fourteenth Amendment. The new lawsuit involves a Cambridge tour operator who wants access to the Charles River via a boat launch ramp that is located in Boston. Boston refuses to give the licenses that would permit the operator to cross the Longfellow Bridge on its way to the boat ramp. Although the aspect of the lawsuit asserting the right to pursue a lawful occupation free of unreasonable regulation challenges the 1873 opinion in The Slaughter-House Cases, the lawsuit also cleverly asserts the right of access to navigable waterways that was affirmed in dicta in Slaughter-House. The Boston Globe has a favorable editorial this morning here including this excerpt:
A moratorium on new sightseeing vehicles may have made sense during Big Dig construction. But the Big Dig is over, and so is the need for such stringent traffic precautions. Further, the moratorium appears to have lifted for current operators who were granted 11 new licenses since 2000, according to the lawsuit. That's powerful evidence for the Institute for Justice's contention that the snubbing of Tyler is nothing more than government protection of an "entrenched cartel" favoring the seven operators who now control the 107 sightseeing licenses in Boston. . . . Absent any concern for the health and safety of the public, the moratorium, especially if applied selectively, is little more than a means to tread on the economic liberties of entrepreneurs.
Wow! Yes, that was the Boston Globe. Here is a story about the lawsuit in today's Boston Herald. The following video shows the innovative watercraft that the tour operator intends to use, and an explanation of the case by IJ attorney Jeff Rowes and his client Erroll Tyler. [Full disclosure: the video also includes brilliant legal commentary from a member of the Georgetown Law faculty. *s*]


Sean Gabb's Advice to the Tories: Sean Gabb of the Libertarian Alliance in the UK is a sharp and provocative speaker and writer. Two nights ago, he gave a fiery address to the Conservative Future, a group of young Tories. Here is how the group reported the speech on its website:
Last night Dr Sean Gabb, director of the Libertarian Alliance, gave an impassioned speech in the cause of liberty to members of Conservative Future at the monthly Star Social event of the Cities of London and Westminster Conservative Future, of which I am chairman. In it he bluntly laid bare the actions that a truly conservative government should take, and his fears for the likely incoming Conservative government.

It was fiery oration, and no doubt shook some of the audience who came with more blissfully sedate views. But it underscored the importance of the conservative movement, the broad church of organisations and individuals which generates the ideas to drive forward the pursuit of liberty. All who attended were of the opinion that whilst they may or may not agree with Dr Gabb, he was an excellent speaker with fascinating ideas.

For my part, I think memories of his speech will live long in attendees’ memories, and, uncomfortably perhaps, at least at first, they’ll come to see some of the wisdom therein. There can be no question that more young people need to hear from Sean and his ilk, purveyors of fresh thinking.
You can read the transcript of the speech here along with a bit of introductory commentary. I hesitate to provide any excerpt because the speech hangs together as a whole--and you especially want to read the hostile questioning as well as Gabb's responses. But perhaps the most interesting juxtaposition is his advice to abolish the BBC immediately upon obtaining power:
[Y]ou should not try to work with the Establishment. You should not try to jolly it along. You should not try fighting it on narrow fronts. You must regard it as the enemy, and you must smash it.

On the first day of your government, you should close down the BBC. You should take it off air. You should disclaim its copyrights. You should throw all its staff into the street. You should not try to privatise the BBC. This would simply be to transfer the voice of your enemy from the public to the private sector, where it might be more effective in its opposition. You must shut it down - and shut it down at once. You should do the same with much of the administration. The Foreign Office, much of the Home Office, the Commission for Racial Equality, anything to do with health and safety and planning and child protection - I mean much of the public sector - these should be shut down. If at the end of your first month in power, you have not shut down half of the State, you are failing. If you have shut down half the State, you have made a step in the right direction, and are ready for still further cuts.
But retaining welfare and national health care.
Following from this, however, I advise you to leave large areas of the welfare state alone. It is regrettable, but most people in this country do like the idea of healthcare free at the point of use, and of free education, and of pensions and unemployment benefit. These must go in the long term. But they must be retained in the short term to maintain electoral support. Their cost and methods of provision should be examined. But cutting welfare provision would be politically unwise in the early days of our revolution.
The purpose of moving on the former but not the latter is explained this way:
Let me emphasize that the purpose of these cuts would not be to save money for the taxpayers or lift an immense weight of bureaucracy from their backs - though they would do this. The purpose is to destroy the Establishment before it can destroy you. You must tear up the web of power and personal connections that make these people effective as an opposition to radical change. If you do this, you will face no more clamour than if you moved slowly and half-heartedly. Again, I remember to campaign against the Thatcher “cuts”. There were no cuts, except in the rate of growth of state spending. You would never have thought this from the the torrent of protests that rolled in from the Establishment and its clients. And so my advice is to go ahead and make real cuts - and be prepared to set the police on anyone who dares riot against you.
This last remark about the Thatcher "cuts" reminded me of how I felt during the Reagan administration. Reagan was loudly and persistently condemned for making radical changes to the size and scope government that he never made. So it always seemed to me that he would have been no worse off politically had he actually had made the radical changes for which he was blamed. Then at least his supporters would be heartened and the benefits of these changes would be felt. But not making the changes, but being blamed for having done so, was the worst of both worlds. So too with the Bush Administration, though Bush's critic have a hard time keeping a straight face when they accuse him of promoting Laissez-Faire. Still, how much worse would Bush's political standing have been if he had actually done what he was accused of doing? I would wager his approval rating would have been higher. 30-35% opposition to any Republican administration is fixed. So you don't get to Bush's low approval numbers without substantial disapproval from his base. However, although I do not know either man personally, I suspect a big difference between Reagan and Bush is that Reagan truly wanted a smaller government and Bush truly did not.

Related Posts (on one page):

  1. Sean Gabb's Advice to the Tories:
  2. Should Libertarians Go Red or Blue?
  3. Liberaltarianism Revisited:

Talk at the University of Michigan Today:

At noon today, I'll be speaking at the University of Michigan Law School about my book-in-progress, "Rehabilitating Lochner." The talk is sponsored by the U. Mich. Federalist Society, and is open to the public.


Tuesday, February 17, 2009

Should Libertarians Go Red or Blue? I have been enjoying the recent dialogue over so-called liberaltarianism (links are in Ilya's post). I don't have that much to add except perhaps this:

In a two party system, such as ours, each party is a coalition that is striving to get past 50%, unlike a parliamentary system in which governments are formed by joining together enough distinct parties. This seems to be one of the reasons why the Libertarian Party was doomed from its inception (though I erroneously supported its formation way back when). It would seem that draining both parties of libertarians would have to make each party less libertarian at the margin. Becoming a part of each party's coalition would make each somewhat more libertarian at the margin, however slightly. It would necessarily mean, however, that libertarians in either party would be in a coalition with some with whom they greatly disagree. That is politics in a two-party system.

Happily, some libertarians feel more comfortable with conservatives and others with progressives (i.e. modern liberals). Some are reasonably comfortable with both camps, depending on the situation. Libertarians should simply gravitate to where their inclinations take them. Some of this will turn on where each party is at a particular moment. For example, are Republicans "big government conservatives"? Are Democrats "New New Dealers"? Of course, other libertarians can abjure politics and parties altogether for some other activity that advances liberty.

I found this idea well summarized by a comment posted to Will Wilkenson's blog:
The reality is that Republicans think A and when in power do B, while Democrats think C and when in power do B. Libertarians are generally against B. What we need is a substantial presence of libertarians in both parties, so that when in power there is an internal narrative that advises against doing B.
The key is the "internal narrative." The tricky part is getting each coalition to value its libertarian contingent. To achieve this, however, would seem to require the sort of political engagement that at least some libertarians dispositionally dislike--which is how they gravitated to libertarianism in the first place.

Like I said, I don't have anything particularly novel to say about this. But casting the issue in terms of 2 competing electoral coalitions may be more constructive than either employing Republican/Democrat or conservative/liberal dichotomies.

Related Posts (on one page):

  1. Sean Gabb's Advice to the Tories:
  2. Should Libertarians Go Red or Blue?
  3. Liberaltarianism Revisited:

Symposium Issues: I'm wondering: Are symposium issues of law reviews generally more-often cited, less-often cited, or equally-often cited than non-symposium issues of law reviews? Does anyone know of general trends on this? I realize it presumably depends on the issue; that it depends in part on the journal; that citations aren't everything; and that there are different ways of measuring citations. Yup, all true. Still, I was wondering if journals often find that symposium issues are cited more or less often than other issues. Does anyone know?
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Ethnic Profiling at Southwest Airlines!

I printed out my boarding pass yesterday, and the confirmation code was ... JEWAJT. How did they know? Who told them? I tell you, I pick up on those kind o' things.

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Regulatory Takings and the 14th Amendment:

Tomorrow I will teach Chicago, Burlington & Quincy Railroad Co. v. Chicago, in which the Supreme Court first held that the Fourteenth Amendment requires states to pay just compensation when private property is taken for public use. While sometimes identified as the first case in which the Supreme Court "incorporated" a provision of the Bill of Rights against the states, there is no mention of the Fifth Amendment or the Takings Clause. Rather, Justice Harlan's opinion for the Court explicitly rests its legal conclusion on the due process requirement of the Fourteenth Amendment. It is only later that the Court expressly incorporates the Takings Clause, and further finds that some regulations -- those that go "too far" in Justice Holmes immortal words -- may trigger the compensation requirement.

If one assumes that the Court's holding in Chicago, Burlington & Quincy Railroad Co. v. Chicago is correct, the next question is whether the substantive protection afforded property rights under the Fourteenth Amendment is the same as that under the Fifth Amendment. That is, if the due process clause (or, perhaps, the Privileges or Immunities Clause) bars the taking of private property for public use without just compensation, is the meaning of this prohibition the same? Should we assume that the understanding of this prohibition in 1791 was the same as in 1868? If, for instance, we don't believe that the Fifth Amendment's takings clause required compensation for regulatory takings, does this preclude the recognition of such a requirement under the Fourteenth?

USD law professor Michael Rappaport has an interesting new paper on SSRN exploring some of these questions, "Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May." Here is the abstract:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar's theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution's original meaning does not apply to state regulatory takings.

I should note that one could make a similar argument with regard to the "public use requirement" of the Takings Clause. That is, even if one does not believe that the Fifth Amendment Takings Clause imposed an independent restriction on the purposes for which property was taken by the federal government (because, among other things, such limitations were imposed by the enumeration of limited federal powers), there may be reasons to believe that the Fourteenth Amendment does.

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"The Coming Law Firm Hiring Crisis":

Aric Press at the American Lawyer looks at current trends in the legal market, and they're not pretty.

If nothing changes, this fall the same law firms that recently laid off lawyers will start welcoming large groups of new lawyers, whom they will pay too well and for whom they will have too little work. If the layoffs were about saving money in a downturn, the new hires will overwhelm any savings and will signal that the firms regard the economic crisis as little more than a mild detour on the golden brick road.

I wish it were otherwise. But consider the current Conventional Wisdom: At law firms work (and profits) are down, attrition is far below average, law school graduates hired in an optimistic time are about to join firms awash in anxiety, and the conveyor belt that will bring still more eager and talented young lawyers aboard is about to start up again.

This does not seem to be a sustainable situation. If it's not, it will, at a minimum, force law firms to make a harsh choice between the lawyers they already have on staff and the ones they're about to welcome.

What does this mean for law schools? I suspect it will become even more difficult to place students with legal employers. This, in turn, will have a big impact on debt-laden students. One big question is whether it will discourage prospective students from entering law school. After all, piling on the debt doesn't seem like such a good deal if it won't be easy to get a well-paying job. And student loans don't seem as easy to come by now as they were before either. In short, law schools may soon feel more of the crunch that law firms, young lawyers, and graduating students are feeling now.

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Liberaltarianism Revisited:

Libertarian blogger Will Wilkinson has kicked off a renewed debate over the potential of "liberaltarianism," the proposed alliance between libertarians and liberals that was much-discussed back in 2006. Will believes that the idea still has merit. Various conservative and libertarian commentators, including Jonah Goldberg, Matt Welch, Ross Douthat, and Virginia Postrel are skeptical.

I. My Reasons for Skepticism.

Back in 2006, I argued that liberals and libertarians have stronger philosophical affinities than libertarians and conservatives. But I also doubted in that same post that a liberaltarian alliance was feasible because most liberal intellectuals are loath to emphasize those parts of their agenda that justify shrinking government and liberal politicians are strongly beholden to interest groups with a vested interest in expanding it.

Although I wish things were different, I think that my 2006 reasons for skepticism are more valid today than they were back then. The financial crisis/recession have persuaded most liberal intellectuals that our current problems are the result of insufficient government and have made it far more difficult to persuade them to take arguments against massive expansions of government seriously (to say nothing of arguments for its radical reduction). I think that claims that the financial crisis discredits libertarianism are seriously flawed. But most liberals clearly believe otherwise.

With the exception of a few economists, virtually all liberal public intellectuals that I know of either support Barack Obama's massive stimulus plan or believe that it should be even larger than it is. Back in November, I made the not very original prediction that President Obama's and the new Democratic Congress' plans for a massive expansion of government would drive libertarians and conservatives together in opposition:

With Barack Obama in the White House and the Democrats enjoying large majorities in Congress at a time of economic crisis, it is highly likely that they will push for a large expansion of government even beyond that which recently occurred under Bush. That prospect may bring libertarians and conservatives back together. Many of the items on the likely Democratic legislative agenda are anathema to both groups: a vast expansion of government control of health care, new legal privileges for labor unions, expanded regulation of a variety of industries, protectionism, increased government spending on infrastructure and a variety of other purposes, and bailouts for additional industries, such as automakers.

Most of the above has either already come to pass, or is on the president's legislative agenda for the near future. And, just as I expected, libertarians and conservatives have reunited in opposition to it.

II. An Intellectual Movement?

In his original post, Will Wilkinson conceded that liberaltarianism is not a likely political alliance for the near future, but argued that the movement still has great potential for bringing together libertarian and liberal intellectuals around common values. As he puts it:

I want to help create the possibility of a popular political identity that takes the value of human liberty, in all its aspects, really seriously. As I see it, this project involves an attempt to reunify the separate strands of the American liberal tradition.... [around] an authentically liberal governing philosophy that understands that limited government, free markets, a culture of tolerance, and a sound social safety net are the best means to better lives.

Will's "authentically liberal governing philosophy" sounds good to me. The problem is that few if any liberal intellectuals are willing to sign on, except by redefinining the terms in ways antithetical to what most libertarians would accept (e.g. - by "a sound safety net," they mean a vastly larger welfare state than even the most moderate libertarians are likely to support; under "culture of tolerance," they include a variety of PC excesses, etc.).

Back in 2006, liberal intellectual interest in "liberaltarianism" was driven largely by electoral calculations; they hoped that wooing libertarians would help the Democrats to finally defeat the Republicans (who had won several elections in a row). This comes through very clearly in Markos Moulitsos' 2006 defense of the concept, which explicitly refuses to concede any ideological ground to libertarians, but merely urges them to vote for the Democrats as a lesser evil relative to the Republicans. A number of prominent libertarian intellectuals - including Wilkinson, Brink Lindsey, and former VC member Jacob Levy - have sought to forge a liberaltarian coalition that goes beyond a temporary political alliance of convenience. It is striking that that not a single prominent liberal joined them.

Today, liberal intellectuals are, if anything, even less willing to make concessions to libertarians than they were in 2006. On an ideological level, the financial crisis has lowered the stock of libertarianism in their eyes. In a strange way, the Bush record of massive expansions of government has also shifted the goalposts for liberal Democrats. They seem to assume that anything Bush and the Republicans did must have been "laissez faire" (despite overwhelming evidence to the contrary) and that the current Democratic agenda represents a needed course correction relative to failed free market policies rather than a continuation of Bush-era trends of greatly increased government spending and regulation.

From a political viewpoint, liberals they think they have strong enough congressional majorities and public support to be able to get along without libertarians. Moulitsos and his allies no longer see any need to trumpet their "libertarian democrat" credentials.

None of this means that libertarians shouldn't conduct a "conversation" with liberals, as Will urges. For example, we should continue to take their arguments seriously, and to press on on them the libertarian view that government has systematic flaws, and that the poor and disadvantaged - the traditional objects of liberal concern - are often best served by limiting its power. We should also remember the chief lesson of the Bush era: that a federal government under united Republican control is often no better than one controlled by the Democrats. The last eight years have highlighted and exacerbated our serious disagreements with many conservatives. Skepticism about liberaltarianism must be coupled with an appreciation of the shortcomings of the conservative-libertarian "fusionism" that frayed so badly under Bush.

That said, we must be realistic. There is not going to be any viable liberaltarianism in the near future - whether in the form of a political coalition or an intellectual movement. If the Democrats take some political setbacks, and Obama's big government policies come to be perceived as failures, liberals may become more open to liberaltarian ideas - as some were as a result of Democratic setbacks in the 1980s and 90s. Until then, liberals and libertarians can still listen to each other and cooperate on a few selected issues where we happen to agree. But not much more than that.

UPDATE: National Review columnist Jonah Goldberg claims that he was the one who really kicked off this round of liberaltarianism discussion, and that I am denying him his "morsels of glory" by giving the credit to Will Wilkinson. An in-depth investigation by the VC Blogging Glory Accreditation Department reveals that Goldberg's claim of chronological priority is correct. We hereby award him his unjustly denied morsel of glory.

160 Comments

How About Some Links to the Underlying Documents?

The L.A. Times covers the lawsuit against L.A. City College for a speech professor's refusing to grade a student's in-class presentation.

But how about a link to the Complaint? This Complaint, after all, includes not just the student's side of the story, but also some pretty useful supporting documents (including one that strongly supports the "professor ... allegedly told him to 'ask God what your grade is'" statement).

Wouldn't some readers find it useful to see this? To be sure, the link wouldn't help the print readers directly, but aren't quite a few people reading newspaper stories online these days? Note that the story actually includes a link — to an L.A. Times article on a tangentially related subject. Why not a link to the underlying documents on precisely this subject?

Even print readers who are interested in such supporting documents could take advantage of the online links, by simply finding the online version of the story. And even people who don't follow the links might find the story more credible if it provides the links. How hard would it be for the newspaper to actually give interested readers such raw material, rather than expecting them to rely solely on the newspaper's necessarily highly abridged account?

Related Posts (on one page):

  1. How About Some Links to the Underlying Documents?
  2. Professor in Speech Class Refuses to Grade Student's Presentation,
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Professor in Speech Class Refuses to Grade Student's Presentation,

apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. On top of that, he apparently called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to allow the student to finish the presentation. Lovely.

The student, helped by the Alliance Defense Fund, is suing (Lopez v. Candaele). The Complaint I linked to includes supporting documents. In particular, the evaluation sheet on p. 31 reflects that the teacher indeed didn't give a grade, but instead said "Ask God what your grade is." It seems to me pretty clear that refusal to give a grade because the teacher disapproves of the religiosity of the student's presentation, or of the student's opposition to same-sex marriage, is indeed a First Amendment violation.

Professors doubtless have a vast degree of flexibility in grading students, even in viewpoint-based ways. For instance, if a law student is told to construct the best possible argument in support of position X (as I often require on my exams), he may be graded down for instead constructing an argument opposing position X. Likewise, if a student, in response to a question about how old the Earth likely is, answers "6000 years," he can be graded down even though a student who answered "4.5 billion years" would have gotten full credit. A judgment about how old the Earth is an expression of a viewpoint based on the best available evidence, so the professor's grading would indeed favor one viewpoint over another -- but entirely permissibly so.

Nonetheless, this flexibility can't be unlimited, I think: When a professor refuses to give a grade, or (to take a hypothetical) even if the professor gives a low grade but for a reason that pretty clearly falls outside the academic subject matter of the class (for instance, because a student in a speech class expressed political viewpoints that the professor disapproved of), that violates the First Amendment.

The evaluation sheet also shows that the teacher wrote "proselytizing is inappropriate in public school." If, as seems likely, this represents the teacher's view that it is somehow an Establishment Clause violation for a student to convey religious views in his in-class presentation, that is not accurate. (If the teacher had set up an assignment that required secular arguments rather than religious arguments, I think that would have been within his authority, since I don't think Rosenberger applies to class presentations. But the teacher's reference to public school suggests that he's making a claim about the constitutional rules that apply to public institutions, and not to general professional norms that would apply to all colleges, or specific requirements for his own class.)

The complaint also seeks to invalidate L.A. City College's campus speech code, which the professor also referred to in a follow-up to the incident (see p. 170); I think the plaintiff should prevail on that.

Finally, note that one of the College's responses (pp. 37-38) states that the College is indeed acknowledging that the teacher's behavior was improper, that the teacher would be disciplined in some unspecified way, and that Lopez wouldn't ultimately be penalized on his final grade. At the same time, though, the College's response notes that several students were offended by Lopez's statements, and says:

Where do we go from here? Regardless of the other students' reactions to Mr. Lopez' speech, Mr. Matteson will still be disciplined. First amendment rights will not be violated as is evidenced by the fact that even though many of the students were offended by Mr. Lopez' speech, no action will be taken against any of them for expressing their opinions.

No actions will be taken against any of the students for expressing their opinions critical of Lopez -- what a blow for the freedom of speech! (Even if the "any of them" is meant to include Lopez as well as the other students, surely the reference to "any of them" misses the point, no?)

Related Posts (on one page):

  1. How About Some Links to the Underlying Documents?
  2. Professor in Speech Class Refuses to Grade Student's Presentation,
115 Comments

Monday, February 16, 2009

Stewart Baker,

former Assistant Secretary for Policy for the Department of Homeland Security (under Bush 43) and General Counsel of the NSA (under Bush 41), has just started blogging at Homeland Reading List. Stewart is a very smart and interesting fellow, and his blog should be much worth reading.

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Do Judges Make Better Justices?

In a recent speech, Chief Justice Roberts suggested that having more former appellate judges on the Supreme Court makes the Court's decisions less political. The NYT reports:

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”

Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?”

That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”

I understand why the Chief Justice might think this way, but I am skeptical. There does not appear for there to be much empirical support for his claim, and reasons to believe that a Court made up exclusively of former appellate judges might have other deficiencies.

If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”

And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court.

I am not eager to see a former politician on the High Court, but I believe it would be valuable to have justices with greater trial court and non-judicial experience.

37 Comments

DoJ Removes Stevens' Prosecution Team:

Politico reports that the Justice Department has removed the prosecution team that successfully prosecuted Senator Stevens and was then subsequently found in contempt of court for misconduct. Of note, the Justice Department denies the claims upon which the contempt charges were based.

Related Posts (on one page):

  1. DoJ Removes Stevens' Prosecution Team:
  2. Sen. Stevens Prosecutors Held in Contempt:
6 Comments

Interesting (and likely correct) Perspective on the Election in Israel:

Ha'artez:

Shockingly, the Israeli public may have voted for the right not because it rejects the idea of peace deals, partition, and a two-state solution, but because it believes the right is better qualified to find a way to carry out that undeniably painful process. "The outcome of the elections indicates that Israelis view the 'peace process' with the Palestinians as a divorce process," writes economic analyst Elah Alkalai.

"As their unwilling embrace was arranged by global forces, so apparently will be their separation. Think of it as severance of an arranged marriage, and the vote Israelis cast last week was for what they perceive as the roughest, toughest divorce lawyer in town."

Avigdor Lieberman, the hands-down success story of the election, has repeatedly outraged the far-right by suggesting in the past that some heavily Arab-populated East Jerusalem neighborhoods and refugee camps be ceded to an eventual independent Palestinian state in the West Bank and Gaza [editor: not to mention his willingness to concede to the Palestinians Arab towns within the 1967 borders.] He has consistently alientated the ultra-Orthodox - an essential building block of any right-wing dream coalition - by demanding civil-marriage and modified Jewish conversion legislation favored by Lieberman's ultra-secular constituency.

Netanyahu's Likud, the anchor of a potential rightist coalition, has been on record for years as favoring an eventual Palestinian state in the territories, as long as strict security guarantees were met. The Likud is also the only party ever to have headed a government which dismantled established settlements. Only two parties, representing just seven seats in the 120-seat Knesset, still argue for a Greater Israel. Not even the fringe-right National Union with its frankly pro-Kahane wing, dares come out in public for a return to permanent Israeli occupation of the Gaza Strip, stating in its platform only that "There will be no uprooting of Jewish communities and no surrender of parts of the Land of Israel in any subsequent Israeli government led by the party."

"In other words," Alkalai concludes, "the majority vote was cast for a leadership - the right wing - that the public thinks can end the relationship with the most assets for Israelis and preferably no alimony at all for the spouse."

The Israeli Left has lost the confidence of Israelis by persuading them to put their faith in a "peace process" premised on the assumption that the dispute with the Palestinians was primarily about land, and that if Israel was willing to withdraw from land appropriated in 1967, peace would ensue. That turned out to be overly simplistic, and perhaps very naive. I recall reading several left-wing Ha'aretz columnists who claimed during the Second Intifada that the underlying problem was that the Palestinians didn't believe Israel would ever withdraw from any of the "occupied territories." Israel subsequently did withdraw, from Gaza and part of Samaria, but this led to the election of Hamas in Gaza, not to the triumph of Palestinian doves. The left still clings to its paradigm, however. The Israeli right, meanwhile, has quickly shifted to what it is at least able to portray as a "realist" approach to the Palestinians. As is usual in politics, the side that has been better able to react to events on the ground, rather than sticking to ideological presuppositions, has won--which doesn't, of course, make it right.

[Disclosure: I don't know who I'd support if I were an Israeli. I'd want someone with the free market sympathies and communication skills of Netanyahu; the secularism and willingness to confront the fact that an ever-increasing percentage of Israelis, primarily Arab and ultra-Orthodox, have no loyalty to the state as currently constituted, of Lieberman; the military experience of Barak; and the moderation of Livni, without their myriad disadvantages, including the demonstrated diplomatic incompetence of Netanyahu and Barak, the demagoguery and penchant for outrageous statements of Lieberman, and the black-boxedness of Livni.]

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Bush and Lincoln's Laws of War:

Unlike co-blogger Eric Posner, I do not support the Bush Administration's claims that the executive has virtually unlimited authority to take any wartime measures it believes might help promote national security [imprecise language from the original post has been amended here for purposes of clarity]. That said, I think that Eric is largely correct in suggesting that Bush's policies were more similar to those of Abraham Lincoln in the Civil War than John Fabian Witt is willing to admit. As Witt himself points out, Lincoln's 1863 Lieber Code was very permissive, allowing a wide range of practices that modern liberals and international law scholars would surely denounce:

As the code's Confederate critics noticed immediately, the laws of war Lincoln announced in 1863 were far tougher than the humanitarian rules McClellan had demanded a year earlier. The code allowed for the destruction of civilian property, the bombardment of civilians in besieged cities, the starving of noncombatants, and the emancipation of civilians' slaves. It permitted executing prisoners in cases of necessity or as retaliation. It condoned the summary executions of enemy guerillas. And in its most open-ended provision, the code authorized any measure necessary to secure the ends of war and defend the country. "To save the country," the code declared, "is paramount to all other considerations." Lincoln's code was a body of rules not for McClellan's gentleman's war but for Sherman's March to the Sea.

Several provisions of the Lieber Code sanction practices that go well beyond anything countenanced by Bush. For example, Article 52 states that "If . . . the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection." Under this provision, insurgents in Iraq and Afghanistan could be denied all protection under international law, at least after the US and its allies occupied their countries. Articles 82 and 85 allowed the summary execution of all irregular guerrillas and resistance fighters:

Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers; such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates [pirates could be summarily executed under 19th century law].

Art. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.

[emphasis added].

Note that the Lieber Code allows summary execution of "war-rebels" even if they target only the occupying army's military forces and do not attack civilians (as Iraqi insurgents, the Taliban, and Al Qaeda do). Despite all its other excesses, the Bush Administration did not claim the right to summarily execute captured guerrillas and terrorists - even those who do target civilians.

It is true that the Lieber Code bans the torture and mistreatment of prisoners of war. However, these rights to do not extend to "war-rebels" and other insurgents who, as Article 82 points out, "are not entitled to the privileges of prisoners of war" and are generally denied any protection from the laws of war (Article 52).

Moreover, it's worth noting that the Lieber Code does not forbid the use of torture to acquire information, instead merely forbidding "infliction of suffering for the sake of suffering or for revenge, . . . maiming or wounding except in fight, ... [and] torture to extort confessions" (Article 16). The Bush Administration, of course, also claimed to forbid "infliction of suffering for the sake of suffering" and torture for the purpose of extorting confessions, but did claim that torture could sometimes be used to extract information from captured terrorists and insurgents (who,let us remember, under the Lieber Code were not entitled to any protection from the rules of international law).

Moreover, as Witt points out, even acts otherwise prohibited by the Lieber Code could potentially be justified if they are considered necessary to "save the nation" (Article 5). This point is consistent with Lincoln's famous claim that the President could violate one provision of the Constitution where doing so is necessary to save the Constitution as a whole.

Perhaps Witt merely means to suggest that even though Lincoln's code allowed substantive executive power as broad as Bush's position, it paid greater respect to the forms of obeying the law. But the Bush Administration also claimed to be bound by law. It just interpreted that law so broadly as to permit virtually any measure the president considered useful to the war effort.

Lincoln did differ from Bush on a number of important wartime legal issues. For example, he did not so clearly take the position that the President could disobey treaties and laws enacted by Congress whenever he concluded that doing so would further the war effort. The issues covered by the Lieber Code, however, reveal many more similarities between Lincoln and Bush than differences.

Ultimately, I think that the precedent of the Lieber Code is a poor justification for Bush's policies. In my view, several of the Lieber Code's provisions go too far, including most of the articles discussed above. The fact that Lincoln was a great president who won the Civil War and freed the slaves does not mean that everything he did was justified. Still, Bush's legal positions on the law of war were closer to those of Lincoln's Lieber Code than many would like to believe.

Related Posts (on one page):

  1. Bush and Lincoln's Laws of War:
  2. Bush: Lincoln’s heir?
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Nashville Event on Climate Change Policy:

This Thursday I will be in Nashville to debate/discuss climate change policy with Michael Vandenbergh of Vanderbilt Law School at an event sponsored by the Nashville Lawyers Chapter and Environmental Law Practice Group of the Federalist Society and the Vanderbilt University Climate Change Research Network. Among other things, I will make the case for a carbon tax and Professor Vandenbergh will advocate the adoption of a cap-and-trade system for greenhouse gas emissions. Details on the event are here.

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Power Bumps:

The Guardian reports on British plans to install "'green' speed bumps" that will generate electricity as cars drive over them -- costlessly, of course.

The ramps - which cost between £20,000 and £55,000, depending on size - consist of a series of panels set in a pad virtually flush to the road. As the traffic passes over it, the panels go up and down, setting a cog in motion under the road. This then turns a motor, which produces mechanical energy. A steady stream of traffic passing over the bump can generate 10-36kW of power.

The bumps can each produce between £1 and £3.60 of energy an hour for up to 16 hours a day, or between £5,840 and £21,024 a year. Energy not used immediately can be stored or fed into the national grid.

I share the skepticism at Coyote Blog, but we'll see.

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De-escalating the Drug War:

The NYT has an interesting article suggesting President Obama's choice for "drug czar" (aka the head of the Office of National Drug Control Policy) could alter federal drug policy in positive ways.

The anticipated selection of Chief Kerlikowske has given hope to those who want national drug policy to shift from an emphasis on arrest and prosecution to methods more like those employed in Seattle: intervention, treatment and a reduction of problems drug use can cause, a tactic known as harm reduction. Chief Kerlikowske is not necessarily regarded as having forcefully led those efforts, but he has not gotten in the way of them.

“What gives me optimism,” said Ethan Nadelmann, executive director of the Drug Policy Alliance, “is not so much him per se as the fact that he’s been the police chief of Seattle. And Seattle, King County and Washington State have really been at the forefront of harm reduction and other drug policy reform.” . . .

Under John P. Walters, the drug czar during most of the administration of President George W. Bush, the drug office focused on tough enforcement of drug laws, including emphases on marijuana and drug use among youths. The agency pointed to reductions in the use of certain kinds of drugs, but it was criticized by some local law enforcement officials who said its priorities did not reflect local concerns, from the rise of methamphetamine to the fight against drug smuggling at the Mexican border.

As an anti-prohibitionist, I think de-escalation of the drug war would be a very welcome policy shift, but I am skeptical. I think it might be very difficult for the Obama Administration to openly shift resources away from traditional enforcement efforts, as this would open up the Administration to the charge that it is "soft on crime" -- an allegation to which Democratic/liberal administrations are more politically vulnerable. Still, a shift from the harsh prohibitionism of the Bush Administration would be a very good thing.

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John Fabian Witt responds

to my post on his Slate essay:

The characteristically sharp-penned Eric Posner seems to me to miss the mark here. Lincoln as pragmatist is exactly the point I made in the piece (a well-worn idea about Lincoln, I concede, though it is not usually applied to the international laws of war). Lincoln began the war relatively disdainful of the laws of war. When he eventually embraced the idea of the law of war, it was not out of what his drafter Francis Lieber scorned as "mawkish sentimentalism," but out of a very concrete set of strategic aims. This may not be the "fashionable" IHL view of the 21st century, of course. But that's exactly the point. In fact I would have thought that my version of the tradition of Lincoln would appeal to Eric for precisely the reason it departs from both (a) the slightly ridiculous gentleman's duel model of Vattel and McClellan, and (b) the nihilism of those who don't grasp the strategic value that law has to offer. The former may resemble the IHL orthodoxy of the 21st century in its awkward divergence from the security interests of states. But the latter resembles the worst elements of the most recent Bush administration's engagement with the laws of war.

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Do You Dream About Obama?:

This Judith Warner piece about Obamacentric dreams, desires, and resentments, is among the oddest things I've ever read. Like her correspondents, I'm arguably a "peer" of Obama--he graduated Harvard Law in 1991, I graduated Yale Law the same year--but it has never occurred me to compare my life, professional and personal, to his, and I certainly don't dream about him, much less expect Michelle to join my wife's book club. Who are these people?

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My Favorite President:

In honor of President's Day, NRO has a symposium on "My Favorite President." My entry is Calvin Coolidge. It is in alphabetical order, so of course my entry appears last.

Note that the assignment was "My Favorite President," not "The Greatest President" or anything like that.

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Sunday, February 15, 2009

Bush: Lincoln’s heir?

Such is the surprising albeit unintended message of John Fabian Witt’s piece in Slate. A president learns that the measures that he believes necessary for addressing a crisis violate international law. Rather than bowing to the law, he disregards it. He even fires a subordinate who stands in his way and finds a replacement more amenable to his way of thinking. That is what Lincoln did; who does it remind you of?

Not Bush!, says Witt. Conforming as he must to the current intellectual fashion that Obama will rekindle Lincoln’s legacy which Bush has snuffed out, Witt hints that Obama will inherit the mantle of Lincoln’s internationalism. But to make Lincoln’s stance a suitable precursor to Obama’s (actually, tepid) commitment to international law, Witt argues that the military code that Lincoln endorsed in defiance of the prevailing norms of international law would lay the groundwork for the law of war conventions at the Hague and Geneva. This gift to the international rule of law would be repudiated by Bush.

The story doesn’t work. As Witt observes, Lincoln had no use for a war code that would stand in the way of victory. Lieber acquiesced, and so the laws of war bequeathed to the future were ungenerous. For many historians of the laws of war, Lincoln was no hero. It was under Lincoln, and with his approval, that the modern concept of total war was invented—this was Sherman’s march through Georgia. It would be perfected by the Nazis and reach its apotheosis at Hiroshima. The modern codification of the laws of war in treaty instruments began before Lincoln’s time in office, at the Paris Peace Conference of 1856. Lincoln’s contribution was inadvertent, greatly overshadowed by the plumes of smoke towering over Atlanta. The laws of war would have developed as they did, Lieber Code or no.

Bush followed Lincoln in other respects as well. As Witt explains, the international law of war in Lincoln’s time was based on the principle of reciprocity. The laws of war applied to you only so far as your enemy complied with them as well. Otherwise, they don’t advance your interest and hence you have no reason to respect them. Although most international lawyers believe today that the principle of reciprocity does not apply to the Geneva Conventions, under Bush the United States took the Lincolnian view that the laws of war should not apply to Al Qaida and the Taliban because they did not observe them themselves. Like Lincoln, Bush selectively interpreted the laws of war to suit the national interest as he perceived it—using them one way in Iraq and another way in Afghanistan.

Lincoln was a pragmatist; he did not make a fetish of the rule of law. He disregarded the constitutional limits on executive power just as he disregarded international law, believing both would have to bow to his big idea—the preservation of the union. Bush took a similar view, albeit with a different big idea—the war on terror. His presidency did not fail because he neglected Lincoln’s legacy for the rule of law. Bush’s presidency failed despite the fact—or because—he honored that legacy.

Related Posts (on one page):

  1. Bush and Lincoln's Laws of War:
  2. Bush: Lincoln’s heir?
108 Comments

Mexican firearms laws--translation:

Here's a new project to utilize the immense collective mind of VC readers: an English translation of the Mexican firearms statute. The Mexican law, in Spanish, is here. My translation thereof into English is here. Neither the intern who did the first round of the translation, nor I, speak Spanish as a native language. Indeed, my Spanish is extremely primitive; I know less than an American middle schooler with one year of Spanish. Although I am developing an interesting vocabulary, of words such as "fuego circular" (rimfire).

The initial translation was done via machine, and then reviewed and modified by very inexpert humans. So I solicit readers with good Spanish skills to provide suggestions for improvements in any or all of the 91 Articles of the Mexican firearms law. Please focus on improving the translation, and not on arguing about policy questions involving the law.

BTW, the dictionary I used was the Larouse College edition, which is high quality, but did not have the definitions for some words (e.g., "cumuneros" "lanzagases"), or had general definitions for some words, but perhaps lacked the tertiary definitions that were needed here. Do readers have any good suggestions for more advanced Spanish-English dictionary? And, clearly, web-based translation programs are great because they're free, but they obviously have trouble with complex sentences or vocabulary. Any recommendations for a software program for Spanish-English translation? Muchas gracias, lectores inteligentes.

p.s. If you're looking for the spots that caused me the most trouble, just look for the ? in [brackets]. BTW, I would also be grateful for a link to the Mexican Firearms Regulations if there is an on-line version. And for the June 2009 report to the Mexican Senate on arms smuggling.

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One of the Palestinian "civilians" Killed in Gaza:

"Following the clashes, the Palestinian press reported that Naim was killed and that he was a medic with the Palestinian Red Crescent. The Gaza CLA, however, produced photographs of Naim posing holding a rocket-propelled grenade launcher and a Kalashnikov assault rifle that had been posted on a Hamas Web site."

Not surprisingly, the percentage of civilian (or, more precisely, non-combatant) casualties in Gaza is turning out to be substantially lower than official Palestinian sources have claimed. I say not surprisingly, because anyone who remembers the false propaganda emanating from Jenin in 2002 [when about fifty Palestinians, almost all armed terror/militia group members were killed, but when, for example, PA spokesman Nabil Shaath "accused Israel of carrying out summary executions and removing corpses in refrigerated trucks. He said close to 500 people had been killed." Guardian, April 17, 2002], among other occasions, knows to take "official" Palestinian casualty statistics with a grain of salt. Apparently, however, MSM outlets, especially in Europe, don't seem to be among those who have learned this lesson.


DOJ Report on the Torture Memos?: According to Michael Isikoff of Newsweek, DOJ might end up releasing a report from its Office of Professional Responsibility (OPR) reprimanding the authors of the Bush Administration's "torture memos" for failing to maintain the professional standards of the Justice Department. The report might then be referred to the state bars of the individuals who authored the memos for possible disciplinary action. According to Isikoff, "OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe." (Hat tip: Hilzoy)
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Appeals Court Backs Bush Rule on Mountaintop-Removal:

On Friday, a divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed a lower-court ruling that had invalidated the Bush Administration's policy authorizing Clean Water Act permits for mountaintop-removal coal mining. The AP reports here.

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Sunday Song Lyric: "Unforgettable" was Nat King Cole's signature song. It's been covered by many people, but his version is the one that will always be remembered. The song itself was written by Irving Gordon, who eventually won a Grammy when the song was re-recorded as a duet by Natalie Cole. Here is a taste of the lyrics:

Like a song of love that clings to me,
How the thought of you does things to me.
Never before
Has someone been more . . .

Unforgettable
In every way,
And forever more
That's how you'll stay.
Here are videos of Nat "King" Cole singing the song and the Grammy-winning Natalie Cole duet. Word is, the song will also be featured in a commercial within the Watchmen movie.
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Editor Arrested in India for Publishing Essay "Outraging Muslims":

So reports The Independent (U.K.). The essay is apparently this broadly pro-secularist essay by Johann Hari, which has harsh words for the theology of Christianity, Hinduism, some versions of Judaism, and Islam, plus extended criticisms of some political actions by Islamic countries, organizations, and clerics (as well briefer criticisms as of some political actions by the Vatican and by Christian organizations). [UPDATE: Preceding sentence expanded from the original post.] From the Independent article:

The Statesman, a highly respected liberal English-language daily, reprinted the article on 5 February, causing a major backlash among a small group of Muslims who felt that the piece slighted the Prophet Mohamed and insulted their religion. Peaceful protests were held outside The Statesman's offices at the weekend but by Monday, demonstrations had turned violent. Angry crowds began blocking roads, attacking police and calling for the arrest of the article's author and the newspaper's publisher and editor. On Monday and Tuesday police used baton charges to try to disperse crowds and more than 70 protesters were arrested.

Staff at The Statesman were forced to barricade the front entrance to their building and were escorted into their offices through a side door by police. The office is opposite the Tipu Sultan Masjid, Kolkata's largest mosque.

One journalist at The Statesman said: "The police have surrounded our building all this week but the protesters kept coming back. There was a small section who were absolutely hellbent on causing problems."

Here's an excerpt of the essay author's response:

What should an honest defender of free speech say in this position? Every word I wrote was true. I believe the right to openly discuss religion, and follow the facts wherever they lead us, is one of the most precious on earth -– especially in a democracy of a billion people riven with streaks of fanaticism from a minority of Muslims, Hindus and Sikhs. So I cannot and will not apologize.

I did not write a sectarian attack on any particular religion of the kind that could lead to a rerun of India's hellish anti-Muslim or anti-Sikh pogroms, but rather a principled critique of all religions who try to forcibly silence their critics. The right to free speech I am defending protects Muslims as much as everyone else. I passionately support their right to say anything they want -– as long as I too have the right to respond.

It's worth going through the arguments put forward by the rioting fundamentalists, because they will keep recurring in the twenty-first century as secularism is assaulted again and again. They said I had upset "the harmony" of India, and it could only be restored by my arrest. But this is a lop-sided vision of "harmony". It would mean that religious fundamentalists are free to say whatever they want -– and the rest of us have to shut up and agree.

The protestors said I deliberately set out to "offend" them, and I am supposed to say that, no, no offence was intended. But the honest truth is more complicated. Offending fundamentalists isn't my goal –- but if it is an inevitable side-effect of defending human rights, so be it. If fanatics who believe Muslim women should be imprisoned in their homes and gay people should be killed are insulted by my arguments, I don't resile from it. Nothing worth saying is inoffensive to everyone.

You do not have a right to be ring-fenced from offence. Every day, I am offended -– not least by ancient religious texts filled with hate-speech. But I am glad, because I know that the price of taking offence is that I can give it too, if that is where the facts lead me. But again, the protestors propose a lop-sided world. They do not propose to stop voicing their own heinously offensive views about women's rights or homosexuality, but we have to shut up and take it – or we are the ones being "insulting".

It's also worth going through the arguments of the Western defenders of these protestors, because they too aren't going away. Already I have had e-mails and bloggers saying I was "asking for it" by writing a "needlessly provocative" article. When there is a disagreement and one side uses violence, it is a reassuring rhetorical stance to claim both sides are in the wrong, and you take a happy position somewhere in the middle. But is this true? I wrote an article defending human rights, and stating simple facts. Fanatics want to arrest or kill me for it. Is there equivalence here? ...

These events are also a reminder of why it is so important to try to let the oxygen of rationality into religious debates -– and introduce doubt. Voltaire -– one of the great anti-clericalists –- said: "Those who can make you believe absurdities can make you commit atrocities." If you can be made to believe the absurd notion that an invisible deity dictated The Eternal Unchanging Truth to a specific person at a specific time in history and anyone who questions this is Evil, then you can easily be made to demand the death of journalists and free women and homosexuals who question that Truth. But if they have a moment of doubt -– if there is a single nagging question at the back of their minds -– then they are more likely to hesitate. That's why these ideas must be challenged at their core, using words and reason....

Please do not imagine that if you defend these rioters, you are defending ordinary Muslims. If we allow fanatics to silence all questioning voices, the primary victims today will be Muslim women, Muslim gay people, and the many good and honourable Muslim men who support them. Imagine what Britain would look like now if everybody who offered dissenting thoughts about Christianity in the seventeenth century and since was intimidated into silence by the mobs and tyrants who wanted to preserve the most literalist and fanatical readings of the Bible. Imagine how women and gay people would live....

Thanks to Mark Liberman (Language Log) for the pointer; his post has more on the subject.

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