Saturday, March 28, 2009

New paper on licensed carry on campus:

Pretend "Gun-free" School Zones: A Deadly Legal Fiction. Just uploaded on SSRN, and submitted to law reviews. Sixty-three pages examining the empirical evidence regarding the licensed carrying of firearms by professors, schoolteachers, and adult students.

[Richard Painter, guest-blogging, March 28, 2009 at 9:14pm] Trackbacks
What Should We Do Next?:

Although many of my commentators here disagree with me, I still believe there was poor lawyering at various levels that went into the so called torture memos.

It is also clear that efforts to single out particular individuals at OLC for blame do not get to the heart of what happened and why. The question never should have been asked to begin with. Someone high up the chain of command should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture. Otherwise, there should be no memo, period. That is what an ethics officer, if consulted, should have said.

There is plenty of blame to go around here, and at this point I do not see how the blame game will do us any good. It would be particularly disingenuous to look only at the lawyers who signed the memos (we know that the views of a lot of other lawyers both in and outside OLC went into these memos).

A number of commentators have mentioned state bar discipline. There is relatively little case law on discipline for bad legal opinions; in the private sector this is worked out through malpractice suits. In government, lawyers who give wrong answers or answer questions they should have refused to answer are fired or — as is the case here — have to deal with adverse public opinion. I suggest in my book some proposals for how we might improve the quality of lawyering at OLC going forward. One is to involve more career lawyers at OLC in opinion writing, as is the practice at the Department of State. The present administration I hope will take this issue seriously by doing what it can to put its own house in order.

Disciplinary action at the state level furthermore could set a bad precedent. Once state bar associations go down that route, I fear where it would lead. I certainly would not want to be a lawyer for the present Administration coming from a Red State if the state bar happens to be controlled by people who listen to Rush on the radio.

The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere.

Finally, law professors should address this subject with constructive suggestions for change, not with invective. Of particular concern are highhanded efforts to squelch free speech on campuses by saying for example that a lawyer who worked on one of these memos should not be invited to speak or to teach. This type of thing puts the former OLC lawyers on the moral high ground in a battle over campus political correctness — a sideshow — when the real focus should be on what went wrong in the United States government and why.


Another Reason (As Though We Needed Another) Why We Should Never Let the U.N. Run the World

The U.N.'s Human Rights Council has passed a Resolution, put forward by a coalition of Muslim nations, condemning the "defamation of religions." The resolution urges states to provide "protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general," and "deplores the use of printed, audio-visual and electronic media, including the Internet, . . . to incite acts of violence, xenophobia or related intolerance and discrimination towards Islam or any religion." (Calling All Danish Cartoonists!)

It notes that

"as stipulated in international human rights law, everyone has the right to freedom of expression, [but] the exercise of this right carries with it special duties and responsibilities, and may therefore be subject to certain restrictions . . . provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals."

The U.S. is not a member of the Council, so it did not cast a vote. Canada and nine other nations voted against; Terry Cormier of Canada helpfully pointed out that "It is individuals who have rights and not religions."

Thanks to Curt at the Committee to Protect Bloggers for the pointer.


[Richard Painter, guest-blogging, March 28, 2009 at 4:05pm] Trackbacks
One example only:

I am not going to go through each of the "torture memos" and point out where each one appears well off the mark. I will give just one example of the type of analysis that should make someone stop and think.

One of the memos reads

“As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self defense was triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions. The national and the international version of the right to self defense could supplement and bolster the government defendant’s individual right.”

March 14, 2003 Memorandum from OLC to William J. Haynes II, General Counsel of the Department of Defense.

This can’t possibly be right. Many wars and other military engagements arise out of one side attacking the other and the need to respond so there will be no more attacks. Yet inflicting physical harm on prisoners during interrogation is widely believed to be contrary to the laws of war.

If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could. President Roosevelt asked the Justice Department for a lot of other dubious opinions in his years in office, but not that one.

It is true that the memo only states that a government agent, if charged with torture, could “argue” this as a defense. He could. This is also a lousy argument and the memo does not point that out. I fail to see why people at the highest levels of the United States government would be interested in hearing from OLC what specious arguments could be made by a government agent in defense of otherwise illegal conduct.

Even more shocking, there is no further discussion on this argument. There is not even an attempt to answer questions that are obvious to the most casual reader. The paragraph quoted above is instead followed directly by a short three paragraph conclusion, the last sentence of which simply states that “necessity or self defense could provide justifications for any criminal liability.”

One does not have to be an expert in international law, or even a lawyer, to read this and know that something is wrong. The most basic questions about this “self defense” argument are not answered. This dog does not hunt.


[Richard Painter, guest-blogging, March 28, 2009 at 12:55pm] Trackbacks
More on the Torture Memos:

I will not reiterate the many specific criticisms of the memos already made by those with far more expertise than I. A very large number of international law experts see the memos as deeply flawed, as did the Office of Legal Counsel itself.

The job of an ethics lawyer and indeed any lawyer who is a generalist is to spot issues and to identify both legal and nonlegal risks to the client. Here the memos appeared one-sided on their face and it was obvious that the subject matter could expose the United States to widespread condemnation. Whether or not the advice is technically correct, a client is entitled to be told when there are arguments on the other side and when there are risks in proceeding as planned. None of that happened here. I cannot point to specific passages of the memos to illustrate what wasn't there.

It could be argued that the client wanted the advice given. This is common in corporate representations where officers or directors ask for an opinion of counsel stating that they may do something they shouldn't do. Rarely is the opinion given because if it is, and the matter blows up, the corporation, perhaps under new management, can turn around and hit the lawyer with a malpractice suit. Not true in government.


I Join the Weekend Song Lyrics Tradition,

prompted by some recent media commentaries:

So the great affair is over,
but whoever would have guessed
it would leave us all so vacant
and so deeply unmimpressed.


[Richard Painter, guest-blogging, March 28, 2009 at 10:29am] Trackbacks
Torture Memos:

I make a few points in my book.

First, the memos were requested and written before I arrived at the White House in early 2005, and furthermore this is not the type of matter that is brought to the attention of government ethics lawyers. This is part of the problem. Government ethics lawyers should be consulted in the White House and in the agencies about a wide range of matters about which they are never consulted (e.g. document retention policies, proper procedures for dismissing political appointees, etc.). Instead ethics lawyers are tied up in the infinitely complex financial disclosure system (Form 278). They are kept busy arguing with dozens of prospective nominees each year about whether all of the underlying holdings in a hedge fund need to be listed separately on Form 278 (who cares when the underlying holdings of most hedge funds change so quickly that the Form 278 will be stale in about a week).

Second, the questions answered in the memos never should have been asked. A sensible lawyer would know that.

Third, the answer given in these memos was deficient on its face. One does not have to be an expert on international law, the Constitution or the Convention Against Torture to read the memos and know that they are one-sided and rely on thin logic. The “self defense” argument justifying torture, for example, cannot be right. War, if justified at all in a civilized society, is justified principally in self defense. Torture, however, is not acceptable in war. That is the whole point of the Convention. Some of the memos argue that the Convention and other similar treaties cannot bind the President under the Constitution, but one wonders then why the United States signed them. Would the framers really want to deny to the United States the power to make binding treaties? The OLC memos at least had to recognize that there were arguments on the other side, and that the law could be different from what the OLC said it was.

Fourth, the OLC memos probably were so bad in part because the lawyers who wrote the memos, unlike lawyers who provide legal opinions to private clients, did not have to answer for them. Government lawyers don’t get sued for malpractice when they give bad advice; private practice lawyers do. OLC lawyers instead get judgeships, recommendations from political superiors for private sector jobs or they go back to tenured posts in universities. In my book I call these skewed incentives the “malpractice liability gap” between the public and private sectors. I explore ways to address the gap, but as a practical matter it would be difficult to use a malpractice liability regime to hold government lawyers accountable.

Finally, there is the argument that these are no different from the one-sided opinions that OLC has rendered in the past to stretch the law as far as it will go, and sometimes further, in favor of the President’s executive power. President Franklin Roosevelt used Justice Department lawyers to justify expanding his powers before and during World War II and many of his successors did the same. Still, as widely recognized by former OLC lawyers, there are limits to how far OLC can go. For an insightful analysis, see John McGinnis, Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 434 (1993) (pointing out a difficult balancing act because the OLC is not useful to the President unless it has credibility and a reputation for independent legal analysis).

Most important, the “torture memos” took OLC into un-chartered waters. They implicated not only the Constitution and federal statutes, but international law including treaties to which the United States was a signatory. Our adherence to widely accepted laws of war hung in the balance. Our own soldiers would probably be at greater risk as a consequence. The subject matter was grotesque. The memos authorized a violation of human rights that involved human suffering. Religious leaders of all faiths around the world condemned the policy as immoral. At least one Senator heard about the matter from the Presiding Bishop of the church in which he had been raised. See Letter dated October 16, 2005 from The Most Rev. Frank T. Griswold to Senator John McCain (R AZ) (expressing appreciation for “your efforts to preserve intact the Senate approved amendment to prohibit cruel and inhumane treatment of those held in the custody of the United States”). There are not many pastors, priests, rabbis or imams who would disagree. The topic was so inflammatory and the legal reasoning in the memos so flimsy that a successor head of OLC took the unusual step of rescinding them. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007). For all of these reasons, this was an area for OLC to tread lightly in its quest for expanded Executive power. OLC instead chose to barge ahead heedless of the consequences.

In short, there is serious doubt about whether the questions put to OLC should ever have been asked in the first place, as well as serious doubt about whether OLC was acting responsibly in the way it answered them. A government ethics lawyer might not have been able to help, but I doubt one had an opportunity to even try.


Friday, March 27, 2009

[Richard Painter, guest-blogging, March 27, 2009 at 8:40pm] Trackbacks
A Response on Ethics and Religion:

A few points of clarification.

I am a proponent of prayer. Although the best place is at home or in a house of worship, any place will do. That can include a government building when a government employee is off-duty. Indeed, in addition to attending services regularly at St. John’s I at times joined the White House Christian Fellowship for its meetings on the third floor of the Eisenhower Executive Office Building (EEOB). Although the meetings were occasionally spoiled by an overzealous junior staffer or intern who prayed for political opponents and other assorted sinners, in general these meetings were conducted in a dignified manner; they were both informative and inspiring. The White House Christian Fellowship also lacked the problems that made Attorney General Ashcroft’s Bible studies vulnerable to the claim that there was pressure to go. None of the most senior White House staff attended and more than once I was the only commissioned officer in the room.

All of this, however, was done in a personal capacity, usually over the lunch hour. Nobody ever characterized this or any other prayer group meeting as an official function of the United States government.

This comports not only with the law, but with my understanding of prayer. I do not pray as a spokesperson for the United States government. I ask forgiveness for my own sins not those of the United States government except to the extent they are in part my own.

The Archbishop did not stop the prayer from going forward, or even try. Neither did I. It is difficult, however, to characterize a meeting that ends with a sectarian prayer, here a Christian prayer, as an official function of the United States government. When the prayer closely parallels the subject matter of the meeting, separating the personal capacity prayer from the official capacity meeting is artificial. It is also difficult to hold a productive meeting to conduct official government business when some employees of the government entity because of their personal religious convictions might not be able to participate in that meeting to the same extent as others.

These may have been some of the problems that the Archbishop wondered about. Regardless of whether a country has a constitutional bar on state establishment of religion – England in fact has an official church – the practical problems are the same. It would not matter if the meeting were to be held in the EEOB or in Whitehall in London; if a Jewish or Muslim member of the staff attended the meeting, the situation could get awkward. Personal functions would encroach on the official to an extent that conduct of official business could be impaired.

These are not problems created by lawyers or by bishops. These are problems inherent in any society where people of different faiths live together and conduct the business of government together. I doubt the lines here are best drawn by courts or by legal rules. These lines are best drawn by common sense.

The meeting in my view ended up being unofficial, which is fine. If I had known, I would have suggested that the Archbishop be invited to attend a meeting of the White House Christian Fellowship or some other private group. That was not, however, the original intent of the invitation.

Finally, analogizing this situation to ceremonial functions such as an inauguration or a state funeral is inapposite. There are longstanding traditions of bringing religious elements into these ceremonies, usually in a way which is widely understood not to interfere with the objective and which may even promote it. An interesting law review article could be written on the lawsuit that was served on the Chief Justice demanding an injunction against a Presidential oath ending in “so help me God”. Just about everyone, however, could predict the outcome of that litigation. Whatever time the Chief Justice spent reading the complaint probably would have been better invested rehearsing the oath of office.

Once again, I do not claim expertise in Establishment Clause issues. Government ethics rules – here those against endorsement — are designed to stop people well short of conduct which violates the Constitution. The issue is whether whatever we do, particularly that which we do in an official capacity, interferes with public confidence in the proper functioning of our government.

As an aside, I should respond to one commentator who suggested that a White House ethics lawyer could “take away my money, my job, or my liberty, using the power of the state.” Actually, I did nothing of the kind. I did ask several people who voluntarily chose to work for the government to sell some investments, including investment bank stock, at prices far in excess of what those investments would be worth today, while throwing in deferment of capital gains tax with an Office of Government Ethics certificate of divestiture. I have written in my book that this process needs to be simplified. I have to say however that many of the people I helped come into government have a lot to be thankful for, just as the Country should be thankful for their service.


Lots of Interesting Stuff over at The Faculty Lounge recently.

[Richard Painter, guest-blogging, March 27, 2009 at 12:56pm] Trackbacks
Religion and Government Ethics:

For comprehensive discussion of the First Bank of the United States, a leading authority is Mark R. Killenbeck, M’Culloch v. Maryland: Securing a Nation (2006) (Killenbeck has the spelling correct). The book is reviewed by H. Robert Baker in

Now that I have inflamed nearly everyone by suggesting that partisan political activity be toned down at the White House, I will turn to religion.

I start with the radical suggestion that the best place for free exercise of religion in Washington is St. John’s Church across the street from the White House, or any other church, synagogue, mosque, temple or house of worship. Bringing religion directly into the work of the White House or another government entity can only cause trouble.

I do not address this as a matter of constitutional law, or theology, which I leave to others. I am saying that government entanglement with religion is difficult from a government ethics lawyer’s perspective. The more entanglement there is, the more difficulty there is. Combine religion with partisan political activity, as many government officials now do, and the ethics lawyer confronts a three way mix of Hatch Act regulations, the Establishment Clause and government ethics regulations. I pointed out in an earlier post that ethics problems often begin when someone thinks he or she can wear two hats instead of one. Try three.

We have throughout history had references to religious values by persons making government policy, perhaps even more so than references to civic values of political parties. This is not the problem. Appropriate boundaries are difficult to draw, but to the extent actual government functions instead of political rhetoric test the limits of those boundaries, government ethics and other legal questions move to the fore.

Entirely apart from Establishment Clause issues, a lawyer must be mindful of Office of Government Ethics regulations that prohibit government employees from using their office to endorse a particular organization, such as a particular church. There are also prohibitions on use of public office for the private gain of an individual or an organization.

Government meetings with religious leaders, like meetings with union leaders and corporate leaders, are appropriate. Government meetings with religious leaders that are used to promote fundraising by a non-government organization are, however, inappropriate use of public office for private gain. A White House staff member’s speech to members of a religious organization can be an official speech, but a White House staff member should actively participate in a sectarian religious service only in a personal capacity not an official capacity (giving an official speech and then passively sitting in on a sectarian service afterwards is in the gray area). This is also an area in which a more flexible standard is applied to the President and Vice President and to ceremonial functions where one of them is present such as a memorial service.

One time I recommended that a particular religious leader be invited into the White House. I was concerned that press coverage suggested that the White House relied too much on politically active evangelical leaders and at least twice thought I saw James Dobson hanging around the West Wing Lobby. The Office of Faith Based Initiatives was intended to reach out to a broad range of religious leaders, which it was doing, but having more high profile leaders from different perspectives could always help. I had met the retired Archbishop of Canterbury, George Carey, at a social function and I had heard that he was in Washington for much of the year. I suggested that the White House Faith Based Office invite him in for a meeting, which it did

The meeting was supposed to be official and it was informative, at least from a international comparative perspective, for assessing a justification for having a White House Faith Based Office to begin with. The meeting was to inform us about how much churches in the Anglican Communion do or do not require support from governments around the world to conduct their social programs for the poor (the answer we learned was that they do not get much government support for these programs and the best thing governments can do is not get in the way)

At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity. He was assured that U.S. government employees were free to pray in a personal capacity. The situation was confusing, however, because he had been told that the purpose of the meeting was official.

There we were, I as the White House ethics lawyer at what everyone had been told was an official meeting, and the Archbishop of Canterbury was calling us on questions of separation of church and state. True, the meeting could be personal instead of official if people wanted it that way. I didn’t see how it could be both.

The meeting became unofficial. With the last “amen” was the executive privilege, if there ever was any, for the entire meeting waived? Alternatively, were there two meetings – an official meeting and a prayer meeting – instead of one? This was a muddle indeed.

Admittedly, many of us bring personal views, and sometimes our religious faith, to this discussion. I belong to a church known for a formal mode of worship that does not spill over easily into the workplace (more recently Episcopalians have also been known for ignoring the world’s problems while engaging in a loud argument between those who believe the Bishop of New Hampshire is not qualified for office and those who believe that the personal life of the Bishop of New Hampshire is the business of the Bishop of New Hampshire). Perhaps it is my own bias, but I am persuaded by the analysis of religion and politics in a book by an Episcopal clergyman who was also a United States Senator. See John Danforth, Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together (2006)

Some conduct in this area is perfectly legal; it is just embarrassing. An example was a series of “Justice Sundays” in 2005 during which U.S. Senators and other politicians conducted telecasts from churches urging an end to filibusters and other tactics Democrats were using to delay Senate confirmation of nominees to the federal bench (the Eleventh Commandment “thou shalt not filibuster” is of greater or lesser theological importance depending on who controls the Senate). Such electioneering would not occur in the vast majority of churches, synagogues, mosques and other places of worship. Many Americans believe the Justice Department and Senate hearing rooms are more appropriate places to discuss these issues. Because so many people found it distasteful, “Justice Sunday” may have backfired and encumbered the Administration’s ability to get some qualified judicial nominees confirmed.

I am not suggesting that more rules will address this problem; rules often make things worse. I am suggesting that voluntary restraint by government officials who stand well clear of legal limits would restore public trust in government, and in organized religion. It would also make a government ethics lawyer’s life easier.

We seem to have reached a point where the manner in which one Republican (Governor Palin) says she does not enjoy working with certain other Republicans (McCain staffers) is to say she does not want to pray with them. We have also reached the point where such a remark, instead of being ignored, is viewed as the highest form of insult and a cause for yet more Party infighting. If we keep carrying on in this way, I hope someone is praying for the future of the Republican Party.

As Republicans conduct what amounts to a factionalized prayer meeting, the Country is under one-party rule. The Government owns more and more of our economy and asserts more power over our private lives. Churches for the time being remain independent, but one wonders what will happen when churches, bankrupted by litigation, discover that they too need a bailout and that only one small clause of the Constitution stands in the way.


Left/Right bloggers: Huge split on defict; smaller split on Obama's on-line mobilization:

In this week's National Journal poll of political bloggers, the first topics was "How should Congress respond to the recent deficit projections?" The first question thereunder produced a rare perfect split between the Left and the Right. One hundred percent of the Left said that Congress should "Pass something close to President Obama's budget," and 100 percent of the Right said not. The options of "Delay some major Obama initiatives" and "Cut the growth in entitlements" also yielded huge splits, although not quite 100% vs. 100%. "Cut the growth in defense spending" got 80% support on the Left, and 35% support on the Right.

My comment: "The congressional majority's handling of the 'stimulus' -- particularly in forcing votes before the conference report could even be read -- evoked the last days of the Roman Republic, with a legislature abdicating governing responsibility to an all-powerful executive. At the least, the rank and file of both parties should insist on proper legislative procedures when the budget is considered, so that every legislator (or his staff) has time to read the budget before every vote."

The second topic was "What effect will Obama's online mobilization effort have on Democratic efforts to pass the budget?" On the Left, 94% said it would help either a lot or a little. Forty-two percent on the Right felt the same way; within both groups, "a little" was by far the leading choice. I voted "a little", and commented: "Because the budget promotes even more of the same old failed policies of D.C. (wasteful pork spending and reckless deficits) rather than the change that Obama promised, it will be interesting to see whether the Obama online network is so devoted to the cult of personality that they will mobilize in large numbers."


Former Chef:

My friend Kristina Johnson (whom I've known for almost 25 years) has started a new blog, Former Chef -- it's mostly about food, though knowing her obsessions, I'm sure it will have lots of travel stuff in it as well. (After she quit her job as a chef, she and her husband took nine months off to travel around the world, in the process becoming proto-bloggers.)

Kristina is still in the restaurant business, but on the management side, which is much better for her friends, since now that she no longer cooks for a living she's actually willing to cook for us. In any case, if you like food, you should definitely check this out.


Free Software and Copyright Law:

Yesterday I attended a talk given by Richard Stallman here at Temple, on copyright law's increasing dis-utility (and Stallman’s proposals for reform of that law).

Stallman, needless to say, is a fascinating character. He’s already a major figure in the history of computing and computers, and it may turn out that he’s a major figure in the history of the production of creative works more generally – time will tell about that. Twenty-five years ago, he had a ridiculous – borderline insane, really – idea: “free software” ("free," as he takes pains to remind us, in the sense “free speech,” not “free beer”). Large numbers of people could collaborate to produce functioning and efficient software systems that would be outside of anyone’s proprietary control? Why would anyone do that? Where’s the incentive? Who’s going to work “for free”? Who would be in charge? How could they all possibly make it work on the technical side?

Of course, he managed to pull it off – not on his own, to be sure, but he surely deserves a great deal of the credit for the success of open source software, software which now dominates a number of important segments of the computer universe and which is becoming more and more central to the business models of even the giants in the industry (e.g., Sun Microsystems and IBM).

I have great admiration for men and women who manage to pull off things that are borderline insane when viewed against the conventional wisdom; it’s why I like Jefferson so much. They’ve earned the right to have their crazy ideas taken seriously – no small feat.

Stallman currently has copyright law directly in his sights. Like many people – myself very much included – he has concluded that copyright law is broken, in fundamental ways, that it no longer functions to encourage the production of creative works, but in fact has quite the opposite effect, serving primarily to stifle creative activity. I couldn’t agree more with him on that. He’s got a specific proposal for changes in the law. I’m going to wait until he commits those to writing before I comment specifically about them – I’m not entirely comfortable relying on my memory of his talk as a basis on which to comment. But the basics were these: much shorter copyright term for all works (in the neighborhood of 10 years or so, rather than the insane life+70 we now have), and a division of works into various categories that would get different levels of protection, from low to high: functional works, works of opinion and reference, and works of entertainment.

The devil’s always in the details, and I’ll have more to say about this proposal when I see and understand the details a little better. But here’s what’s really interesting about all this. Open source software – paradoxically, or perhaps only ironically – is entirely dependent on copyright for its legal foundations. The entire open source system relies on a complex licensing scheme (of Stallman’s invention), under which open source software is distributed under a special license that (a) gives all users certain rights (to use, copy, and modify the software) and (b) requires that any re-distribution include the same provision giving users those rights. It’s a kind of recursive non-proprietary licensing algorithm – quite ingenious.

What many people don’t understand about open source licenses is that they can be (and are) enforced by asserting a claim of copyright infringement against violators, not merely a claim for breach of contract. That is, if you take open source code and copy it and modify it and then re-distribute it without the provisions providing your users with the rights set forth in the license that you received, you will be infringing the copyright in the underlying work (in addition to breaching your contract). That principle was reaffirmed recently by the Federal Circuit, in the Jacobsen v. Katzer case, and it is of fundamental importance to the whole open source movement. Why? Because a breach of contract action is virtually worthless as an enforcement device, while a copyright infringement action is a powerful weapon indeed. There are many, many reasons why this is so. In a breach of contract action, the plaintiff has the burden of establishing that there was a contract – no small task, when the licensee here could’ve picked up this software from any of a million different places, all around the internet. Who’s got a record of the “contract” that the defendant agreed to, and exactly where he/she agreed to it. And even if you establish a contract, your damages for breach of the contract are limited to the harm you suffered as a result of the breach – demonstrating that that’s more than negligible is going to be incredibly difficult. It makes a breach of contract action entirely ineffective as a means for enforcing the open source license. But copyright infringement’s another matter entirely. Once you show that the defendant copied/modified/re-distributed your work, the burden is on the defendant to show that he/she was authorized to do that by the copyright-holder. And there are statutory damages independent of actual harm to which you are entitled for copyright actions – now you’re talking serious money.

Stallman understands this thoroughly – though the vast majority of commentators on the open source movement have missed this point. I suspect that his ultimate aim is not merely to substantially weaken copyright (as in his proposal) but to eliminate it entirely, and I also suspect that he relishes the idea that he’s been using copyright law as the main weapon in the battle to destroy copyright law – another nice little recursive algorithm.


Must Federal Parole Determination Hearings Be Held in Person?

Yesterday, in Terrell v. United States, the U.S. Court of Appeals held that the United States Parole Commission cannot use video conferencing to conduct parole determination hearings. Rather, under 18 U.S.C. § 4208(e), such proceedings must be held in person. Of note, according to the opinion this was a question of first impression for the federal courts of appeals.


Thursday, March 26, 2009

Against Double Spacing:

Lots of people distribute drafts double-spaced (i.e., with a blank line between each line of text). Maybe it's just me, but that strikes me as suboptimal:

1. Double-spacing makes printouts bulkier, for those of us who still read longish articles on paper (especially when traveling).

2. Double-spacing wastes paper.

3. Single-spacing means more text on a page, so it's more likely that several related paragraphs will be kept together, so that one can return to the previous one if necessary with just one glance.

4. More text is of course not an unalloyed good; absence of white space can make the reader's eyes glaze over. But my sense is that the best place to put white space is in wider margins or possibly blank lines between paragraphs -- blank lines between each line don't help, either psychologically or for comprehension.

5. The one advantage of double spacing is that it makes it easier to make detailed line edits. But very few readers of your draft are likely to want to make detailed line edits. At most they'll want to leave a few notes to themselves, and the margins will likely more than suffice for that.

In any case, that's my take -- is it unusual? Is there something I'm missing?


Massachusetts Trial Court Holds Gun Storage Law Unconstitutional:

After a police officer's 12-year-old son got access to the officer's handgun, the officer was prosecuted for violating Mass. Gen. Laws. ch. 140, § 131L:

It shall be unlawful to store or keep any firearm, rifle or shotgun ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

Last month, the court held the statute was unconstitutional (Commonwealth v. Bolduc), and dismissed the prosecution. I only just now managed to get a copy of the opinion, and here's the relevant discussion:

The locking mechanisms [required by the statute] are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.

In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense." The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.

Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.

In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional.

According to a Massachusetts Lawyers Weekly article notes that Massachusetts courts seem split on this. It also reports that the prosecutor "agreed with [Judge] Lynch's analysis and decided not to appeal. 'I've read the Heller case,' he says. 'Judge Lynch read the Heller case, and the Heller case seems to say very clearly that these kinds of blanket restrictions are unconstitutional.'"

Interestingly, the court seemed to assume that the Second Amendment applies to state laws -- what lawyers call the "incorporation" issue -- which is something Heller pointedly declined to resolve.


Spend Your Law Firm Deferral Time (and Money) with the Institute for Justice:

IJ, one of the top libertarian public interest law firms in the country, writes:

Greetings from the Institute for Justice!

Because of the economic crisis, many law firms are asking their incoming first year associates to defer their start dates (only a couple months while others are a full year) and are offering stipends to these deferred associates, especially if they work at public interest organizations during their deferment.

The Institute for Justice is encouraging third year law students facing firm deferrals to apply to work at the Institute for Justice this fall. IJ is currently accepting applications and interested students should email a cover letter, resume and writing sample along with any specific details of their deferment (such as timing, if they are being offered a stipend, etc.) to me at

Founded in 1991, the Institute for Justice engages in cutting-edge constitutional litigation and advocacy, both in the courts of law and in the court of public opinion, on behalf of individuals whose most basic rights are denied by the government—like the right to earn an honest living, private property rights, the right to free speech and educational choice.


Qualified Immunity With Disputed Facts: Sorry for raising a post that is probably only of interest to readers who follow qualified immunity law, but reader Peder Batalden brings up an interesting question about a recent Ninth Circuit case, Tortu v. Las Vegas Metro. Police Dep’t,___ F.3d ___, 2009 WL 514228 (9th Cir. Mar. 3, 2009). The question is, how can police officers raise qualified immunity issues on appeal when their claims of qualified immunity are denied in the District Court because the facts are disputed? To read Peder's e-mail follow the link below.


[Richard Painter, guest-blogging, March 26, 2009 at 2:48pm] Trackbacks
The First Bank of the United States:

Thanks to MarkField for pointing out my error — the Bank's charter did not expire in 1808, although I believe 1811 not 1812 is the correct year and I have inserted 1811 in my earlier post.

In my post, I was careful to refer to "the" allegations of corruption, which were accusations of insider trading and conflict of interest by speculators and Members of Congress dealing in federal and state government bonds. It is true that the First Bank — unlike the Second — was otherwise operated in a relatively clean manner. This did not matter. Jeffersonians hated the bank and hated Hamilton and everything he stood for, and the scandal from speculation in government bonds had tarnished the Bank along with the rest of Hamilton's economic agenda. Sound economics perhaps the Federalists had, but without ethics at the outset, sound economic policy may go nowhere.

The Second Bank was set up after the War of 1812 when the government realized that without a Bank it could have difficulty raising money, particularly compared with England. This Bank was indeed "ethically challenged" for much of its existence (including Bank President Nicholas Biddle's payoffs for Senator Daniel Webster). President Jackson was able to use these and other allegations against the Bank to shut it down as well.

The United States did not get another government bank until the Federal Reserve was established in 1913. When a Wall Street bailout was required in 1907, J.P. Morgan & Co. had to work with the Treasury Department to get the job done. The Bank of England had been around since 1694, a 220 year head start on the United States. Business ethics and government ethics I believe were part of our national bank story or lack of one for so long.

England of course had its own experience with the combination of bad business ethics and bad government ethics, the South Sea Bubble of 1720. Many Members of Parliament were trading in the stock — and enacting bills to promote the Company — before it crashed. The King's mistress was stock jobbing as well, although I am not sure that similar access to inside information was given to the Queen.

The result was the Bubble Act, which restricted use of limited liability for transferable shares for over a century (the Act's actual impact on England's economy is a matter of debate as it was relatively easy for London solicitors to figure out a way around the Act). Once again, the reaction to ethics scandals in government and business, particularly when the two are combined, can be bad economic policy or bad regulation. Legislators, rushing to cover their posteriors, may take rash action.

More on all of this is in my Chicago legal history lecture, available on SSRN.

More recently, we had Enron and Worldcom in 2001 and 2002, and more recently the Wall Street meltdown. The rest of the story speaks for itself.

Richard Painter


"Assault Weapon" / .50-Caliber Rifle Ban by Zip Code:

I just read an interesting amendment to an Illinois House Bill proposed by Illinois Rep. André M. Thapedi. A few thoughts:

1. The law that it proposes would be titled "the Automatic Weapons Safe Zone Act of 2009." But many provisions of the law expressly target semiautomatics, and those that don't specifically mention that in fact will only practically apply to semiautomatics, since fully automatic weapons are already banned for civilians by Illinois law.

2. The law, as now usual, defines "assault weapons" by focusing partly on whether they have folding stocks, pistol grips, barrel shrouds, and other factors that are of no relevance to the gun's dangerousness or criminal utility. Even if criminals comply with it, they can be just as dangerous by simply switching to other, unbanned weapons. (The .50-caliber rifle is potentially more dangerous, but it is of course not commonly used in crime, in Illinois or elsewhere.

3. Most remarkably, though, the law applies to "the following zip codes: 60637, 60636, 60629, 60621, 60620, and 60619."

These are, as I understand it, overwhelmingly black (except 60629), which leads Dave Workman (Seattle Gun Rights Examiner) to condemn the bill as "racist." I don't think that's right. I have no reason to think that the representative is hostile to any particular race, and even if one focuses just on the impact of the law (something that I think shouldn't be done under the label "racist"), both the restrictive and the supposedly protective effects of the law will mostly affect blacks. At the same time, this sort of criminal-law-by-zip-code strikes me as unusual and unlikely to be either effective or fair.

Thanks to Dave Workman and Prof. Ray Kessler for the pointer.

UPDATE: Removed a clause asserting that fully automatic weapons are already largely banned by federal law. As the comments point out, the federal statute's cap on the availability of fully automatics (an artifact of the ban on new automatics with the grandfathering in of the old ones) is better characterized as heavy regulation that makes lawfully owned fully automatics very expensive. But in any event this is something of a tangent, since Illinois law does completely ban civilian possession of fully automatic weapons in Illinois.


Lobbying, "Propaganda," and Political Activity Coordinated with Government Officials as Legally Actionable "Conspiracy"?

In Moxley v. Town of Walkersville (D. Md. Mar. 6), land owners are suing over the town’s denying a religious group’s land use permit application. The plaintiffs allege that the decision was based largely on the group’s being Muslim, which would violate the Free Exercise Clause. There do indeed seem to be facts that support the allegation, so the town's action may well be unconstitutional, as well as a statutory violation. (I set aside whether these particulars plaintiffs have standing to raise the group’s rights.)

But the plaintiffs sued not only the town but also private citizens who allegedly (1) discussed with town officials how the land use permit can be blocked, (2) "embarked on a propaganda campaign aimed at furthering their goal," by "set[ting] up internet sites, hir[ing] 'experts,' and ma[king] statements in newspapers and blogs," (3) in a way coordinated with the town officials' activities. And the court refused to dismiss these claims against the private citizens, on the grounds that the private defendants were conspiring with the public defendants.

Can this be right, though? Can otherwise First-Amendment-protected petitioning of the government -– even petitioning for an action that would be unconstitutional if the government did it -– coupled with otherwise First-Amendment-protected public support for the government’s plans constitute a civilly (or even criminally) punishable conspiracy? (I should note that some of the statements were alleged to be false, so they might not be First-Amendment-protected. But even some false factual statements are protected by the First Amendment; some of the allegedly false statements sound like matters of opinion; and in any case, the allegations also focus on statements that can't be labeled false factual assertions.) I'm not an expert on federal civil rights conspiracy claims, but this strikes me as impermissible.

Of course, speakers who call for unconstitutional action aren’t terribly sympathetic. But such lawsuits could be filed even when it’s far from clear that the action is unconstitutional. The private defendants would have to spend their own money (not the government entity’s money) to defend themselves. Also, as I understand it, such private citizens wouldn’t even have the qualified immunity defense that's available to government officials when the matter is unsettled.

So if some person or group

  • urges a principal to restrict student speech,

  • urges a city to hire a black employee to serve a predominantly black community,

  • urges a government agency to arrest someone or search his property,

  • urges a government agency to seize someone's firearms,

  • urges a university administrator to pass a speech code,

  • urges a city to fire an employee who expressed some reprehensible views (left, right, or otherwise), or

  • urges a city to fire an employee for the employee's off-duty sexual conduct

and then publicly supports this action in a way coordinated with the government officials, he could find himself sued for his advocacy, on the grounds that his interactions with the government make the speech part of a "conspiracy." Maybe he'll win at trial and maybe he'll lose, depending on how a court resolves the often vague question of whether the lobbied-for action was unconstitutional. But he'll certainly be facing a massive legal bill, just for expressing certain views and interacting with government officials while doing so.

Here is an excerpt from the statement of facts as plaintiffs allege them to be -– again, I focus here only on the actions of the private defendants –- and from the court’s reasoning refusing to dismiss the lawsuit against the private defendants. Tell me, please, if there's something I'm missing.

UPDATE: Prompted by a comment from commenter AF, I revised the title, the second paragraph, and the line following the bulleted list to make clear that the private defendants are being faulted not just for lobbying and propaganda, but for coordinating their speech with government officials as part of a political advocacy campaign. But I don't think this at all changes the analysis: Coordinating your political advocacy with government officials is just as protected by the First Amendment, I think, as speaking independently of them.

I realize that coordination is of relevance when it comes to the spending of money, see Buckley v. Valeo, but that has to do with the possibility that such coordinated spending would be an implicit bribe. Here, the coordination is seen to be actionable not because of the spending of money, but because of the government action that the private speakers are advocating in a coordinated way.


Was Heller Insignificant?

So claimed the New York Times last week, relying heavily on UCLA law professor Adam Winkler. In an article in today's The New Ledger (a on-line newspaper and news aggregator that started publication in January), I argue that the Times missed many instances in which Heller has had a direct and significant impact--in getting rid of oppressive gun laws, or in requiring the fairer enforcement and application of others.


Who Are the Murderers (and Voluntary Manslaughterers)?

Are they mostly ordinary folks like you and me who just snap? Or are they disproportionately likely to have criminal records?

I know of no truly comprehensive data on this, but here's what we learn from the intentional homicide line in Justice Department's Felony Defendants in Large Urban Counties, 2004 (a sample that is representative of the large urban counties that account for roughly half of the nation's violent crimes):

  • 83% had a prior adult arrest (compared to likely 25% or so of the adult U.S. population).

  • 76% had two or more prior adult arrests.

  • 55% had five or more prior adult arrests.

  • 65% had a prior adult conviction.

  • 44% had a prior adult felony conviction (compared to about 7.5% of the adult U.S. population, see Christopher Uggen et al., Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders, 605 Annals Am. Acad. Pol. & Soc. Sci. 281, 288 (2006)).

This does not include "arrests or convictions that occurred while the defendant was a juvenile" (I quote here from an e-mail from the author of the report). Since nearly half of all homicide offenders are 24 or under, the exclusion of juvenile arrests and convictions is thus likely to substantially undercount the actual arrest and conviction record. This also doesn't include arrests or convictions that the state effectively expunged or never logged, for instance because someone was allowed a "deferred adjudication," which is essentially probation in lieu of a conviction, so that no conviction would be entered if the probation is finished with no observed violations.

Note that these numbers have been increasing in the past decades, though I can't tell whether this is because changes in who commits crimes, changes in criminal apprehension rates, or changes in states' keeping good track of criminal histories.

(Reposted to fix a glitch that blocked submission of comments.)


Speech Today at GMU: I will giving my talk, "Was Lochner Right? Natural Rights and the Constitution" today at 5:00pm at George Mason University School of Law (3301 Fairfax Drive, Arlington, Virginia) in room 221. GMU Professor Eric Claeys has graciously agreed to offer his comments.

Next week I will be speaking on this topic on Monday at noon at Duke and on Tuesday at noon at University of North Carolina.

John Hope Franklin, RIP:

The noted historian, John Hope Franklin, died yesterday at the age of 94. His most important book was probably From Slavery to Freedom: A History of African Americans, though he authored many others. Walter Dellinger has a rememberance of Franklin in the Washington Post. It begins:

John Hope Franklin, who died yesterday at 94, was one of the most remarkable Americans of the 20th century. He was the master of the great American story of that century, the story of race. John Hope wrote it, he taught it, and he lived it.


Epstein on AIG Bonus Tax:

Richard Epstein in today's WSJ:

The AIG bonuses were made pursuant to valid contracts entered into before the receipt of the bailout money. They were ratified in the legislation that provided for the bailout, and efforts to find loopholes in these contracts have proved unavailing.

Thus any sensible system of limited government should consider the proposed bills unconstitutional. Special taxes on some forms of income (but not others) and retroactive taxes put in place after business transactions are complete both merit strong condemnation. The bills in Congress are rife with both elements.

Nevertheless, a constitutional attack against any such law that might emerge faces an uphill battle.

Epstein's bottom line: Courts are too deferential to Congress, particularly in the context of taxes and economic regulation.


Mixed Signals on a New World Currency.

The Obama Administration has been strangely noncommital on the prospect floated by the Chinese and the Russians of Special Drawing Rights based on a basket of currencies to replace the US dollar as the world's reserve currency.

Both Austan Goolsbee and Timothy Geithner refused to rule it out when asked about it. Geithner said, "We’re actually quite open to that suggestion," though he viewed the proposal as merely "evolutionary." Like the President, they expressed the view that the dollar was doing fine, but they didn't actually express opposition to the proposal.

When I first heard of the proposal, I thought several things:

(1) Whether it was a good or bad idea for the world, at first glance it would seem to be a very bad idea for the US, because we need people to hold dollars, especially with our exploding national debt. (Of course, if it were really good for other countries' economies, that might accrue to the US's benefit in the long run. I haven't yet seen a careful analysis of the issue.)

(2) The likeliest knee-jerk reaction of any US official -- in public at least -- would be to dismiss the proposal out-of-hand. Any other position might weaken the dollar and the US's bargaining position.

(3) This might nicely raise a dilemma that some of us noted in the campaign. I think that Obama loves the US above all other countries, but by personality he would find it natural to be an honest broker in a dispute between US interests and those of other countries. This might be a perfect example of an instance where US and foreign interests might conflict, but where both sides would have reasonable positions. Will the Obama Administration vigorously push the US's interests or will it instead act as an honest broker between US and foreign interests?

My guess on the last issue is the same one as I gave a few days ago, that US interests will ultimately be pushed by the President, but the failure of both Geithner and Goolsbee to speak out more forcefully against the Chinese proposal suggests that the Administration's position may be as yet undetermined, that Geithner was telling the truth when he said that we are open to the proposal.

Related Posts (on one page):

  1. Mixed Signals on a New World Currency.
  2. A New World Currency to Replace the Dollar.

[Richard Painter, guest-blogging, March 26, 2009 at 12:52am] Trackbacks
Bailouts and Government Ethics

have never mixed, and never will.

Let’s start with the great bailout of 1789. The Treasury Department was born and its Secretary, Alexander Hamilton, proposed that the new federal government use the Bank of the United States to pay off the Continental Revolutionary War debt at 100% of face value and also bail out the states by paying off their debt at 100%. The notes were trading at 20% to 30% and speculators – many of them Hamilton’s friends – were buying them up furiously. Members of Congress had to approve Hamilton’s plan, which they eventually did, but many bought up notes first.

Senator William Maclay (D –PA) and some other Democrats complained that this entire business was unethical. Maclay recounted in his Journal that Members of Congress and other speculators sent stage coaches all over the West and South with cash to find and buy as many of the notes as possible from farmers and war veterans and bring the notes back to New York to sell as soon as Hamilton’s plan was a done deal. The scheme worked, but Congress responded by imposing a statutory ban on the Secretary of the Treasury or the Treasurer from being “involved” in the purchase or sale of federal or state government bonds while in office. The 1789 statute is still on the books today and incoming Treasury Secretaries are warned to make government bond purchases and sales before taking office. Hamilton’s First Bank of the United States was also plagued by the allegations of corruption. Jeffersonian Democrats in Congress eventually succeeded in denying renewal of its charter in 1811. Congress, however, did nothing to address the trading in government bonds by its own Members.

When I gave a lecture in 2006 on the 1789 bailout plan, I thought government bailouts of this magnitude and the corruption that came with them were an interesting part of legal history. See Ethics and Corruption in Business and Government: Lessons from the South Sea Bubble and the Bank of the United States (University of Chicago Law School 2006 Maurice and Muriel Fulton Lecture in Legal History) (published by the Law School and available on SSRN)

2008 and 2009 brought another series of massive federal bailouts. These bailouts are no more compatible with government ethics than was the bailout of 1789. The fact that we have more rules on the books about financial conflicts of interest and insider trading will make some difference, but probably not much.

There is clearly dissatisfaction with the “Goldman Sachs goes to Washington” phenomenon that has spanned at least two administrations. True, the top Treasury officials who came from Goldman were forced to sell their Goldman stock (the sales in 2005 and 2006 were at high prices compared with what the stock would fetch today and the Office of Government Ethics provided the “certificate of divestiture” needed to defer capital gains tax on the sales). Nobody thus had any more Goldman stock upon reaching the Treasury Department, and in any event I doubt anyone at Treasury consciously intended to help Goldman in any bailout decisions.

It doesn’t matter. Others on Wall Street and elsewhere complained that bailouts were arbitrary. Lehman Brothers, an old Goldman rival, was allowed to fail. AIG, which owed Goldman about $20 billion as counterparty in derivative transactions, was bailed out. When officials left Treasury, some went to banks that also were asking Treasury for bailout money. Actual impropriety I very much doubt; but there were and there will continue to be appearance problems. These problems however were unavoidable if the bailout deal was going to get done.

How do we fix this going forward? First, we can tinker with ethics rules and agency procedures to make things better at the margins. I discuss some of these ideas in my book. There could be quotas on the number of very senior Treasury officials from a single investment bank. Treasury officials could be prohibited from discussing any official matter with a previous employer for a period of two or three years. As I suggested in an earlier post, Treasury officials could be barred from speaking at or even attending political fundraisers where they are likely to be pressured for bailout funds and pumped for inside information about who is going to be bailed out next. Departing Treasury officials for one year could be prohibited from taking a job at a bank that received funds in a bailout which they participated in personally and substantially (similar restrictions are now imposed on some government procurement officials). All of this might make some difference.

A more radical step would be to eliminate the revolving door and staff the senior ranks of government entirely with career bureaucrats. If we are going to have an industrial policy like France where the government chooses winners and losers in the private sector, why not have a civil service like that of France? The American system of political appointments is not well suited for a government that gets into everything, pays for everything and ends up owning a piece of everything. There are simply too many conflicts of interest.

Finally, perhaps because we value the type of government we have and the experience that private sector jobs bring to government, we might consider a radical idea: no more bailouts. We will have to avoid allowing companies to get “too big to fail”, through antitrust laws or otherwise, or alternatively figure out a way to protect the rest of the economic system when a big company does fail. Whatever is done, we cannot escape the fact that bailouts and ethics don’t mix. We found this out in 1789 and we should know this now.


What an Awful Newspaper Poll:

From the Topeka Capital-Journal, about the proposed Kansas right to bear arms amendment, which would secure an individual right to bear arms:

Should Kansas amend the state constitution regarding the right to bear arms?

[Option:] Absolutely. This is most definitely an individual right. We don't need the judicial system taking it away on a technicality.

[Option:] No. People already have the right to bear arms.

[Option:] I don't care.

As I've often pointed out, such online polls are meaningless as measures of popular sentiment; they measure only the views of only the highly unrepresentative set of people who (1) access the web page (which might already be heavily skewed by who links to that page) and (2) choose to participate in the survey.

But even setting aside, look at the options -- not one of them represents the view that "there is and should be no individual right to bear arms secured against the Kansas government." That's not my view, but how can you have a survey that doesn't offer that as a possible response? Looks like the newspaper isn't even trying to have some veneer of journalistic credibility here. Though perhaps that's for the good; better have a poll that's clearly nonsense rather than one that some people (the ones who aren't familiar with the problems with online polls) think is credible.


Kansas Right to Keep and Bear Arms Amendment:

The Kansas House and Senate have just put on the November 2010 ballot a proposed Kansas right to bear arms constitutional amendment that would read,

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.

The current text, "The people have the right to bear arms for their defense and security," has been read as not securing an individual right in City of Salina v. Blaksley, 83 P. 619 (Kan. 1905), which was adhered to by City of Junction City v. Lee, 532 P.2d 1292 (Kan. 1975). This strikes me as an especially inapt conclusion for a state bill of rights provision, since the right is obviously protected against the state — how then can it belong to some state-defined collective, such as a militia or some such? But that's what the Kansas Supreme Court said. (City of Junction City v. Mevis, 601 P.2d 1145, 1151 (Kan. 1979), struck down a gun control law, challenged by an individual citizen, on the grounds that the law was “unconstitutionally overbroad”; this might involve an implicit conclusion that the right does indeed belong to individual citizens, but the decision didn't rest on the right to bear arms provision, and didn't purport to overrule Blaksley and Lee.) Now it looks like the voters will probably change that.

The votes were 39-1 in the Senate and 116-9 in the House. I would expect a vote comparable to the 74%-26% on the last such state right to bear arms amendment, in Wisconsin in 1998. The text of the amendment, by the way, closely follows a modern trend, as exemplified by New Mexico (1971), Nevada (1982), North Dakota (1984), Utah (1984, slightly different), West Virginia (1986), Delaware (1987), Nebraska (1988), and Wisconsin (1998).

As I discuss in my state constitutional right to bear arms article, an individual right to bear arms to self-defense is expressly secured (either by the text or by court interpretation of the text) by the constitutions of 40 states. The matter is not resolved in two states, Hawaii and Virginia. The provisions in two states, Kansas (not for long now) Kansas and Massachusetts, have been interpreted as securing only a collective right, whatever that might mean under a state constitution. And six state constitutions, those of California, Iowa, Maryland, Minnesota, New Jersey, and New York, don't mention a right to bear arms. I'm a bit surprised that Iowa and Minnesota gun rights supporters haven't gotten similar provisions put on the ballots in those states, since I take it that they'd surely pass there. But I assume the explanation is that people in those states just aren't that worried about state and local governments enacting gun controls, and aren't that interested in sending a message to people or institutions outside their own state.

Thanks to KSC Blog for the pointer.

UPDATE: Added a link to a copy of City of Salina; thanks to Clayton Cramer for putting it up.


Wednesday, March 25, 2009

Alternative Energy v. Wilderness Preservation:

Environmental advocates are learning that there is no free lunch, and that even alternative energy production can involve serious environmental trade-offs. From the NYT:

As the Obama administration puts development of geothermal, wind and solar power on a fast track, the environmental movement finds itself torn between fighting climate change and a passion for saving special places. . . .

“We are learning and understanding the trade-offs between things, and they are hard,” said Pam Eaton, deputy vice president of the public lands campaign of the Wilderness Society, who has been working to bridge gaps between environmentalists.

“You’ve got the short-term impact of a project versus a long-term problem, which is climate change,” Ms Eaton said.

In the Mojave, the biggest fight centers on high-voltage lines that are needed to reach areas where energy will be produced. The likely spots are separated from customers by two large national park properties, several wilderness areas and military bases like the Twenty Nine Palms Marine Corps reservation.

Finding a route for a project called Green Path North, which traverses those installations, fragile ecosystems and angry communities, has been difficult. One path “goes right between my house and the mountains,” Mr. Harvey said.


Nightmares of Legal Academics: From Jacqueline Lipton, a law professor at Case, it's about the law review placement process:
A few weeks ago, I had a dream nightmare that I became deathly ill in the middle of the submission season and was unable to continue expediting my pieces. In the dream, I asked a colleague (the one who dared encouraged me to write this) if he would take over the expediting process for me. He kindly did so and placed both pieces, but he couldn't remember where he had placed them and couldn't find any record of his communications with the journals. He knew the articles were going to be published in the fall, but the doctors said I wouldn't make it that long. So I was left knowing that I was going to die without ever finding out if I had finally cracked the Top 10.
  I haven't had any law review dreams that I remember, but I did recently have a computer search and seizure law dream. I was at my parents' house, and the police knocked on the door and asked to come in. Someone let them in (mom, maybe? I'm not sure), and then the police proceeded to pick up and take away my parents' desktop computer. I asked them what they were doing, and they told me that we had consented: Having agreed to let them in, we had consented to let them take the computer away. I responded that this was totally wrong, because the scope of consent test is what a "typical reasonable person" would think the exchange meant (Florida v. Jimeno), and it was ridiculous to think that consent to enter a home was the same as consent to take away a computer. The police shrugged and took the computer away anyway.

  I think the meaning of the dream is that I really need to write that article I have in mind on consent to search computers. Either that, or I need to take a vacation.

EPA Nominee Cannon Withdraws:

University of Virginia law professor Jonathan Cannon has withdrawn from consideration for Deputy Administrator of the Environmental Protection Agency. Details here.

SSM advances in Vermont legislature:

The state senate approved a gay-marriage bill on a 26-4 vote Monday, followed by a second voice vote without debate yesterday. It now heads to the state house where it is also expected to pass easily. The governor says he will veto the bill, offering a rather novel argument that it takes too much time away from deciding how to spend all that federal stimulus money. An override is possible, but I wouldn't place any bets until the state house actually votes.

Just nine years ago the Vermont Supreme Court instructed the state legislature to come up with a system for giving gay couples the same rights as married couples under state law. Given the choice between gay marriage (which wasn't recognized anywhere in the world in 2000) and the equivalent under a different title, the state legislature created something it called "civil unions." The compromise was extremely controversial in the state. SSM supporters opposed it as "separate but equal." SSM opponents opposed any formal state recognition of gay relationships. There was a campaign that fall to "Take Back Vermont" by voting out the legislators who supported civil unions. That political backlash was unsuccessful and things calmed down. Today, the same legislature may have the votes to override the governor's veto of an SSM bill.

There are number of notable things about the developments in Vermont. First, over time and by degrees, people accommodate themselves to the recognition of SSM. That's also been the experience in Massachusetts and in foreign countries. Second, civil unions need not be the dead end some SSM advocates have feared. And third, the story of the SSM movement is shifting from a judge-dominated narrative to a more democratic one. But the movement has been more complex than this either/or suggests. There is an intricate interplay between judicial decision and democratic action. In Vermont, judges got the ball rolling, the state began to debate the issue, with annual lobbying by SSM advocates, and now the legislature is on board. In California, the legislature got the ball rolling with domestic partnerships (and even marriage), judges pushed it along faster last year, and the voters have called a halt (for now).

In case you're wondering, it's very hard to amend the Vermont constitution. It requires a super-majority in the state senate and approval by the full legislature in successive sessions. The Vermont process is like the Massachusetts model, where SSM survived amendment efforts, and unlike the populist California model, where it lost.

Related Posts (on one page):

  1. Gay marriage, by legislature, in Vermont:
  2. SSM advances in Vermont legislature:

Milton Friedman: "Do American Presidents Reward Virtue"? In the 1990s libertarians were told that their case against central planning had grown stale and irrelevant. That everyone agreed with markets and that, with markets as the baseline, libertarians needed to move on to discuss how markets could be improved upon at the margin. Nowadays the entire panoply of arguments against central planning and unlimited discretionary power for "the public good" are relevant again. So (via John Romano at Big Hollywood) here is a video of Milton Freedman making the comparative case for free markets to a disbelieving Phil Donahue from back in the day. (Note the almost endearing way that one of the inventors of talk TV listened to his guest, with whom he radically disagreed, and let him make his point uninterrupted. A Bill O'Reilly or The View he wasn't.):

Sadly, the likeliest outcome of today's debates is that, in the face of economic insecurity and one party rule, good arguments will not defeat bad policy. Instead, we will have to experience the consequences of these policies and spend decades debating whether the policies were at fault. On a more hopeful note, perhaps the existence of alternative media, along with a more educated cadre of libertarian and conservative advocates for individual freedom and opponents of big government might just be able mitigate the worst of the excesses. That the President seems not to be as charismatic in office as he did as a candidate is also a plus. At this point, he does not seem as capable of inspiring mass enthusiasm for whatever he proposes as one might have feared from the tenor of the campaign.

Fact Versus Law in Miranda Custody Determinations: There's a lot of play in the joints when courts review Miranda custody deteminations as to what exactly are the facts below as compared to legal determinations. The former are reviewed only for clear error; the latter are viewed de novo. For an interesting example of the tension, check out the divided decision in United States v. Bassignani today. Judge O'Scannlain concludes that the suspect was not in custody. Judge Bea, dissenting, concludes that the key factual findings require the court to affirm the District Court that the defendant was in custody. Interesting case.

The Etymological Fallacy and the Etymology of "Etymology":

I've often warned people against the etymological fallacy -- the erroneous assertion "that what a word “really means” [or should mean -EV] is whatever it once meant long ago, perhaps even in another language."

But I hadn't realized, until a few days ago, that the word "etymology" itself comes from a Greek root meaning "true," and hence signifies "studying the true meanings and values of words." So the etymological fallacy is what happens when one fallaciously equates the etymology of a word with what the etymology of "etymology" would suggest -- the true meaning of a word.


"Error! Bookmark Not Defined"

appears in 26 HeinOnline-accessible articles, including two top 20 journals. One of those (a top 10 journal) has this error in two volumes in a row.

I should note, by the way, that one of my articles mentions the "freedom of speach," so I am certainly not without sin.


Identical Twins & Reasonable Doubt: Eugene's post brought back memories. When I was in college, my grandfather and brother were victims of an armed robbery in my grandfather's tile store in Harvey, Illinois. During my first year of law school, the case went to trial. The defendant was acquitted when the defense produced the defendant's identical twin in court to cast doubt on the eyewitness identification. My brother had heard about the existence of a twin and tried to tell the prosecutor before trial, but he never got the chance in the rushed pretrial interview. Perhaps there was nothing the prosecutor could have done about this problem had he known in advance but, due to his inadequate witness preparation, he was prevented from taking any precautions by the fact he knew nothing about the twin until after the twin appeared in open court.

The three most important values of lawyering: preparation, preparation, preparation.

Related Posts (on one page):

  1. Identical Twins & Reasonable Doubt:
  2. "Identical Twins Commit Perfect Crime":

Wall Street Journal Editorial on the Empress Casino Takings Case:

The Wall Street Journal has a good editorial on Empress Casino v. Giannoulias, an important takings case that is currently before the Supreme Court on a petition for cert. The case involves an extremely blatant effort to tax one small group of firms (four riverboat casinos) for the sole purpose of transferring the money to rival businesses (racetracks). Unfortunately, the Illinois Supreme Court categorically ruled that no "tax" can be a taking requiring compensation under the Fifth Amendment's Takings Clause, even when the tax narrowly targets one specific group of businesses for the purpose of benefiting another. Along with several other property scholars, I helped author an amicus brief urging the Court to hear this important case.

As the Wall Street Journal article points out, the tax in question may have been enacted in part because of corruption on the part of since-impeached Illinois Governor Rod Blagojevich. The case also has important implications for takings law more generally:

Illinois politics seems to be everywhere this year — and now it may be headed to the Supreme Court in the form of a lawsuit brought against the state. The case, which has ties to impeached Illinois Governor Rod Blagojevich, could have an important impact on the definition of a "taking" under the Fifth Amendment — as well as implications for the state's power of taxation.

In Empress Casino v. Giannoulias, the question involves the passage of a state law that took money from four riverboat casinos and gave it to five horse-racing tracks to use as purse money, among other things. According to the Illinois Supreme Court, the action cannot be considered a "taking" because it involved the transfer of money from one party to another, not the confiscation of land, as takings law has traditionally been applied. (The casinos are appealing to the U.S. Supremes, who will consider the certiorari petition soon.)

Property is property, however, whether it's the contents of a bank account, a factory, or a house with a white picket fence. If the Illinois Supreme Court ruling is allowed to stand, it could establish a precedent whereby the government may take money from any successful business to prop up a failing one. That means, in theory, the government could pass a law to take money from the successful dry cleaner on Main Street to subsidize the lousy one around the corner — or from Barnes and Noble to subsidize the corner bookshop.

Broadly levied, wealth redistribution for public purpose has already been ruled Constitutional by the Supreme Court in the case of the income tax. Writ small, as it is in Empress Casino, it's a tool that might be wielded against unpopular industries and used by politicians to kiss up to favorite constituents. Think revenge of the aldermen.

This is close to the way things were working in Illinois under Mr. Blagojevich's leadership. The bill authorizing the transfer of money from the four riverboat casinos to the horse-racing industry came in the context of more than $340,000 in contributions by Balmoral and Maywood race track owner John Johnston and other associates to the Friends of Blagojevich between 2002 and 2007. Among the evidence in the Governor's impeachment trial were transcripts of Mr. Blagojevich and his brother Rob discussing some $100,000 in contributions as a quid pro quo for the legislation to benefit the racing industry.


Cato Book Forum Video Now Available: Video of Monday's Cato Book Forum on Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty is now available here on the Cato website. Like her book, Helen's presentation was outstanding, and I commented as well.

Related Posts (on one page):

  1. Cato Book Forum Video Now Available:
  2. Cato Book Forum on Justice Kennedy Today:

The Devalued Prime Minister of a Devalued Government: From a speech yesterday in the European Parliament by Member Daniel Hannan (sans teleprompter) to British Prime Minister Gordon Brown:

From his blog:
The internet has changed politics - changed it utterly and forever. Twenty-four hours ago, I made a three-minute speech in the European Parliament, aimed at Gordon Brown. I tipped off the BBC and some of the newspaper correspondents but, unsurprisingly, they ignored me: I am, after all, simply a backbench MEP.

When I woke up this morning, my phone was clogged with texts, my email inbox with messages. Overnight, the YouTube clip of my remarks had attracted over 36,000 hits. By today, it was the most watched video in Britain.

How did it happen, in the absence of any media coverage? The answer is that political reporters no longer get to decide what's news. The days when a minister gave briefings to a dozen lobby correspondents, and thereby dictated the next day's headlines, are over. Now, a thousand bloggers decide for themselves what is interesting. If enough of them are tickled then, bingo, you're news. (Huge thanks to all the American bloggers: you chaps are way ahead of us in this regard.)

What caught their attention? To be honest, I'm slightly perplexed. I have been making similar speeches every week and posting them on YouTube for the past seven months. I made one just now: 60 seconds on how Brussels is spraying money at the European Investment Bank (see above clip). Perhaps people felt frustrated about the way Gordon Brown had carried on without once asking for their votes. Perhaps they would have loved to tell him what they thought of him, but lacked the opportunity.

Breaking the press monopoly is one thing. But the internet has also broken the political monopoly. Ten or even five years ago, when the Minister for Widgets put out a press release, the mere fact of his position guaranteed a measure of coverage. Nowadays, a politician must compel attention by virtue of what he is saying, not his position.

It's all a bit unsettling for professional journalists and politicians. But it's good news for libertarians of every stripe. Lefties have always relied on control, as much of information as of physical resources. Such control is no longer technically feasible.
FWIW Hannon initially favored Obama over McCain in January '08 before becoming undecided in September.

"Identical Twins Commit Perfect Crime":

GeekPress reports, pointing to a Der Spiegel article: "Saved by their indistinguishable DNA, identical twins suspected in a massive jewelry heist have been set free. Neither could be exclusively linked to the DNA evidence."

Of course, in the pre-DNA era such a crime would have been even harder to solve, twins or no twins. And even in the post-DNA era the government obviously has some techniques for figuring out which of the twins did the deed, though it sounds like those techniques aren't working well here.

Related Posts (on one page):

  1. Identical Twins & Reasonable Doubt:
  2. "Identical Twins Commit Perfect Crime":

The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older):

My right to bear arms article is quite long, so I don’t think I can serialize it on the blog the way I’ve done with some past articles. But I thought I’d blog about a few particularly interesting issues — often ones that are part of the “research agenda” aspect of the article, because my goal is just to identify the some of the key arguments, not to give a definitive answer.

Note that here, as in future posts, I use the scope / burden / reducing danger taxonomy I mention in the Introduction, and discuss at length in Part I of the article. (Short version: Scope arguments for restricting a right, which I think are often quite strong: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, or the background legal principles establishing who is entitled to various rights. Burden arguments for restricting a right, which I also think are often quite strong: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right. Reducing danger arguments for restricting a right, which I find troublesome for reasons I discuss at pp. 20-31: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified. This is where talk of intermediate scrutiny or strict scrutiny would normally fit, though, as Part I.C argues, such labels likely obscure more than they reveal.)

So with this, on to my first excerpt: The right to bear arms in self-defense — both under the Second Amendment and under the 40+ state constitutional provisions that secure such a right, often quite expressly — and young people, both under 18 and 18-to-20. I have omitted most of the footnotes; to see them, please look at the full article.


[Richard Painter, guest-blogging, March 25, 2009 at 1:31pm] Trackbacks
Legislating Morality and Government Ethics:

As one commentator points out, the line between legislating personal morality and legislating anti-social behavior is not always clear. There are gray areas. My point, however, is that the more government tries to regulate people’s lives, the more difficult it is to get people to comply with the law. Noncompliance undermines public confidence in law. We should choose the laws we really need.

I may be wrong on this, but I do not believe prohibition of alcohol was something we needed in the 1920’s. Enforcement of state anti-fraud statutes in the securities business was something we needed and didn’t have.

And there are more contemporary examples. See Bowers v. Hardwick, 478 US 186 (1986) (upholding criminal statutes that almost nobody enforced regulating conduct widely considered nobody’s business), overruled in Lawrence v. Texas, 539 U.S. 558 (2003). Regulating sex is about as likely to be successful as regulating booze. I look forward to hearing convincing evidence to the contrary.

Excessive government regulation affects government ethics because it brings more lobbying and more money into the political process to address an entire range of issues in addition to those that need to be regulated. The modern day “morality crusade” has become a very lucrative enterprise for some – and is very much tied up in our dysfunctional system of campaign finance – but it is not necessarily good for the Country. More on this later.


Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda:

I now have a pretty clean copy of this forthcoming UCLA Law Review article of mine, and I thought I'd post it and invite comments. There's still some time (though not a lot) to make corrections, so please let me know about any errors you find. My one request is that before you respond to some of the items I note below, you look at the relevant parts of the article to see whether that response has already been taken into account.

I expect the article will not entirely please either gun rights maximalists or gun rights minimalists. For instance, I conclude that bans on so-called "assault weapons" -- bans that I think are entirely pointless -- are probably constitutional; not every bad idea is an unconstitutional idea, even where constitutional rights are involved. At the same time, I argue that there should be a right to carry loaded weapons in public (except for a few places). Even if one accepts the correctness of Heller's conclusion that concealed carry can be restricted, your right to keep and bear arms for self-defense must generally include your right to have those arms where self-defense is needed, not just to have them at home when you're out on the street. Whether this idiosyncratic (moderate? extremist in different derections?) position on the constitutional questions (on the policy questions, I'm generally skeptical of gun restrictions) is right or wrong is for you to judge. But I thought I'd note it so that people know what to expect.

Note also that the first part of the article proposes a general analytical framework that can also help think through existing doctrine for some other constitutional provisions -- I hope that will be useful even for people who aren't at all interested in the right to keep and bear arms.

In any case, here is the Introduction:

The Second Amendment, the Supreme Court has held, secures an individual right to keep and bear arms for self-defense. Whether or not the federal right will be applied to the states, at least 40 state constitutions secure a similar right. How should courts translate this right into workable constitutional doctrine?


[Richard Painter, guest-blogging, March 25, 2009 at 11:57am] Trackbacks
Taking Questions:

I understand the President is taking questions from the public on the WHO web site. I encourage everyone to log on and ask. You might get an answer.

What we really need by the way is something like the Prime Minister's question time in the House of Commons. I have never seen anyone as good as Prime Minister Blair at the art of ducking. Even President Clinton. Admittedly, the back benchers are very rude, but a good Prime Minister can take it and the whole episode is great entertainment.


[Richard Painter, guest-blogging, March 25, 2009 at 11:49am] Trackbacks

This theme reminds me of a story about the time a Governor of New York was running for President in 1932. The Governor spent most of his time at campaign rallies, in union halls and among the common people he hoped would vote for him in November. Occasionally, however, he kept his ties to prominent families in New York society, whom he hoped would at least tolerate him in office as “one of us.”

One of the Donners, I believe it was William H. Donner, invited the Governor to a family wedding. The Governor accepted on one condition, that there would be no liquor served at the wedding. Prohibition was the law, and a candidate for President could not be caught amongst people who were breaking the law. Donner agreed.

The wedding reception that day was a strange sight. Around the bar stood members of the most prominent families in New York, drinking ice tea and lemonade. They appeared unhappy. Their host Mr. Donner was also unhappy.

Finally, the Governor arrived. He got out of his car, looked around and then acted as if he had forgotten something. He instructed his driver to go back into town. The Governor meanwhile greeted the wedding guests and waited. When his driver returned the Governor retreated into Mr. Donner’s library.

After a while, Mr. Donner went to the library to tell the Governor it was time for lunch. Governor Roosevelt was sitting in a leather armchair holding up his glass.

“A drink Mr. Donner?”

“You son of a . .. . !“

F.D.R. was elected that November and took office the following March. Prohibition was repealed. I understand Mr. Donner moved to Canada.

Despite the hypocrisy here, I have some sympathy for both Mr. Donner and Governor Roosevelt. As I discuss in chapter 9 of my book, religious and not-so-religious groups have at various points in our history lobbied hard for federal regulation of personal morality. Prohibition was the culmination of a thirty-year campaign, and the issue influenced elections. Proponents finally got what they wanted, and it was of course a failure.

While federal agents were busy busting up bars in the 1920’s, Wall Street was intoxicated in a different way. Much of what was going on in the securities business was already illegal under the common law of fraud. Nobody seemed to care.

This is far afield from the specifics of government ethics regulation, but my point is that there is no point having rules that almost everyone ignores. Doing so encourages disrespect of the law, and disrespect for the law may spill over into other areas where law is a lot more important.

F.D.R. was a brilliant politician. He helped put the finishing touches on repeal of Prohibition so liquid assets could flow through the economy more freely. Then he raised taxes. Meanwhile, in 1933 a group of young Harvard Law School graduates led by Tommy Corcoron assembled over bottles of whisky in a room in Washington’s Carlton Hotel to draft the 1933 Securities Act. I know they enjoyed the whisky, particularly when they drafted sections 2, 4 and 5.


"Dear AIG, I Quit":

The executive vice president of AIG's financial services unit quits, and his resignation letter is featured in the NYT.

I am proud of everything I have done for the commodity and equity divisions of A.I.G.-F.P. I was in no way involved in — or responsible for — the credit default swap transactions that have hamstrung A.I.G. Nor were more than a handful of the 400 current employees of A.I.G.-F.P. Most of those responsible have left the company and have conspicuously escaped the public outrage.

After 12 months of hard work dismantling the company — during which A.I.G. reassured us many times we would be rewarded in March 2009 — we in the financial products unit have been betrayed by A.I.G. and are being unfairly persecuted by elected officials. In response to this, I will now leave the company and donate my entire post-tax retention payment to those suffering from the global economic downturn. My intent is to keep none of the money myself.

Given the choice, I'd rather have my taxes pay this guy's bonus than the salaries of our so-called political leaders.

Mispronouncing "Orion."

Barack Obama was criticized in the last day for repeatedly mispronouncing "Orion" in Orion Energy Systems.

While some of us have known the northern constellations since grade school, I would suspect that President Obama knows how to pronounce about as many English words as I do (and a lot more foreign names than I do).

My guess is that Obama pronounced Orion as "OR-ee-un" because that is how the longtime WGN Chicago announcer Orion Samuelson, "the best-known agricultural broadcaster in the country," pronounces his name.

Tuesday, March 24, 2009

[Richard Painter, guest-blogging, March 24, 2009 at 11:48pm] Trackbacks
Want That $21 Hamburger? You Can't Have It. But . . . :

My third post goes to the heart of what my book is about, the fact that federal ethics regulation focuses too much on that which doesn’t matter and too little on that which matters.

Executive Branch employees, for example, cannot accept gifts worth more than $20 from so called “prohibited sources”, although there are numerous exceptions to this rule including gifts from personal friends, attendance at widely attended gatherings (WAGs), gifts of politically related travel, gifts of official travel, and more. If I were to send a copy of my book (some of you have already pointed out what that costs) to a member of the White House staff who was not my personal friend, it would be sent unread to the federal government’s gift warehouse. The warehouse I understand contains everything from Rolex watches given to U.S. intelligence officials by the Saudis to a wine collection. The federal gift rules meanwhile are exceedingly complex, making many ethics officials yearn for some of that wine to accompany their well worn copy of the Code of Federal Regulations. With the exception of the wine, and perhaps some of the watches, however, almost everything in the warehouse is stuff that nobody wants anyway, and stuff that even if accepted in violation of the gift rules would not have affected performance of official duties.

The gifts that really matter are more loosely regulated. Campaign contributions and private sector employment opportunities are chief among them. True, there are limits on individual campaign contributions, but that is where bundling of contributions comes in, and in any event unlimited amounts of money can be given to 527s and other special purpose entities (SPEs) that do what political campaigns also do (attack an opponent, promote an agenda, educate the electorate, etc.) As for post-government employment, here too there are rules, such as the prohibition on participating personally and substantially in an official matter that has a direct and predictable impact on an entity with which you are negotiating for employment. 18 U.S.C., Section 208. These rules also are easy to evade.

Consider the following conversation:

“Treasury Official: You said you need some bailout money. Is $20 billion really enough? Don’t you think you need 30?

Investment Bank CEO: I’ll take 30, although $40 billion would be better. You really ought to work for us someday when you finish at Treasury; I know just the position we could give you.

Treasury Official: My ethics lawyer told me I can’t talk to you about that, at least if I am going to participate personally and substantially in this particular matter, which is to give you the $50 billion, or whatever it is you need.

Investment Bank CEO: I understand. All I really meant to say is that we have a lot of talented people like yourself around our firm and that we want to keep them and hire some more. Speaking of keeping the people we have, I hope that $60 billion you are talking about does not come with strings attached that would affect our bonus program.

Treasury Official: Of course not. We made sure the bill Congress passed had a provision that would protect our – excuse me I mean your – compensation arrangements.”

This smells for sure, but probably passes muster under Section 208.

Solving the problems that really matter – excessive influence of campaign cash and corrupting elements of the revolving door – is not easy. I have a few ideas that I will discuss in later posts. My point here is that existing regulation does not come close. Indeed, existing regulation may be a smokescreen that makes government appear ethical while doing little that actually makes government more ethical. If so, could the regulations be doing more harm than good?

Richard W. Painter


Arlen Specter Jumps Off the Fence on Card Check.

Jennifer Rubin speculates that card check is dead for now because Senator Specter will not support cloture (tip to Instapundit).

If true, that's great news for the economy and the stock market. The chances of card check passing, which had been hanging over the market for months, has been lessening in recent weeks.

On the effects of labor successes in prolonging the Great Depression, see this excellent paper by Harold L. Cole and Lee E. Ohanian. The wage increases achieved by industry cartels and unions during the Depression were staggering, and differed markedly from industries that were not effectively cartelized. By ensuring that market clearing wages were not offered, the government, the cartels, and the unions were able to keep unemplyment very high for years. The study also shows that getting more money into the hands of individual workers is not the answer to an economic downturn.

Though the authors don't explore this, only when capital gains and corporate income taxes were cut substantially in the spring of 1938 did the 1937-38 severe depression (within a severe depression) come to an end.

Proposed EPA Finding that CO2 is a Threat to Public Health.

Supreme Court cases do have consequences. From the AP:

The White House is reviewing a proposed finding by the Environmental Protection Agency that global warming is a threat to public health and welfare.

Such a declaration would be the first step to regulating carbon dioxide and other greenhouse gases under the Clean Air Act and could have broad economic and environmental ramifications. It also would likely spur action by Congress to address climate change more broadly.

The White House acknowledged Monday that the EPA had transmitted its proposed finding on global warming to the Office of Management and Budget, but provided no details. It also cautioned that the Obama administration, which sees responding to climate change a top priority, nevertheless is ready to move cautiously when it comes to actually regulating greenhouse gases, preferring to have Congress act on the matter.

The Supreme Court two years ago directed the EPA to decide whether greenhouse gases, especially carbon dioxide from burning fossil fuels, pose a threat public health and welfare because they are warming the earth. If such a finding is made, these emissions are required to be regulated under the Clean Air Act, the court said.

"I think this is just the step in that process," said White House Press Secretary Robert Gibbs, noting the Supreme Court ruling. Another White House official, speaking anonymously in deference to Gibbs, predicted "a long process" before any rules would be expected to be issued on heat-trapping emissions.

But several congressional officials, also speaking on condition of anonymity because the draft declaration had not been made public - said the transmission makes clear the EPA is moving to declare carbon dioxide and other greenhouse gases a danger to public health and welfare and views them as ripe for regulation under the Clean Air Act.

Such a finding "will officially end the era of denial on global warming," said Rep. Ed Markey, D-Mass., whose Energy and Commerce subcommittee is crafting global warming legislation. . . .

Many business leaders argue - as did President Bush - that the Clean Air Act is ill suited to deal with climate change and that regulating carbon dioxide would hamstring economic growth.

"It will require a huge cascade of (new clean air) permits" and halt a wide array of projects, from building coal plants to highway construction, including many at the heart of President Barack Obama's economic recovery plan, said Bill Kovacs, a vice president for environmental and technology issues at the U.S. Chamber of Commerce. . . .

An internal EPA planning document that surfaced recently suggests the agency would like to have a final endangerment finding by mid-April. But officials have made clear actual regulations are unlikely to come immediately and involve a lengthy process with public comment.

Gibbs, when asked about the EPA document Monday, emphasized that "the president has made quite clear" that he prefers to have the climate issue addressed by Congress as part of a broad, mandatory limit on heat-trapping emissions.

For the last two weeks, I had been assuming that Congress was unlikely to enact cap-and-trade, but I had forgotten that the EPA, if it wanted to, might write a regulatory scheme involving caps, without necessarily involving any trading.

David Kreutzer's analysis of the economic effects of cap-and-trade differs from that of the Obama Administration's: a $5 trillion loss in GDP and a loss of 800,000 jobs.

[Richard Painter, guest-blogging, March 24, 2009 at 6:13pm] Trackbacks

I should add a word about what I can and cannot talk about. I cannot discuss specific communications to me from the President or his staff or specific information learned in the course of my legal representation that was intended to be confidential. I do, however, discuss in my book the types of issues we confronted, all of which are public knowledge and many of which will also be confronted by President Obama and his staff. The President owns the attorney-client privilege, and my ethical duty to keep confidences also runs to him. The President can waive the privilege or the duty, but has not done so. How such matters are handled by Presidents when White House communications are those made under former Presidents is an issue that I will leave to them. Some argue from a policy perspective that none of this information should be privileged or even kept confidential, but such has not been the generally accepted practice. I find plenty to talk about in my book without having to explore the outer limits of the privilege or the duty to keep confidences.


[Richard Painter, guest-blogging, March 24, 2009 at 6:11pm] Trackbacks
Vice President Cheney:

A few commentators bring up Vice President Cheney.

I represented the President and his staff, not the Vice President and his staff. David Addington handled that side of things, and I don’t think he is blogging today.

I take issue in my book, however, with the Vice President on a few matters including the following:

Although the Vice President did not retain an economic interest in Halliburton that likely affected his official duties, the complex arrangement used by his lawyers to donate his Halliburton stock options to charity while he retained title to the options would not have passed muster under the federal conflict of interest statute 18 U.S.C. 208. The only reason the arrangement worked legally was because Section 208 applies to every federal employee except the President and Vice President. Anything he did to dispose of Halliburton stock or stock options would be purely voluntary. Nonetheless, when appearances mean everything in Washington, he should have gotten rid of the options. Once the invasion of Iraq and reconstruction of Iraq were imminent, this became an even more pressing concern.

The Vice President’s staff at times spent too much time arguing about who had the power to tell who to do what – separation of powers and executive power issues -- instead of who should do what. For example, there was a dispute with the National Archives over whether its regulations for handling of classified information applied to the Office of the Vice President (OVP). Because OVP has both legislative and executive branch functions these are fascinating constitutional questions for a law review article, but OVP’s spat with the National Archives did not address the issue that most Americans care about, which is whether proper procedures for handling classified information are being followed. This was particularly worrisome when there was in fact a controversy over whether classified information about a CIA agent was leaked and the OVP had some connection with that controversy. I was the person charged in November 2005 with giving ethics lectures, together with Bill Leonard from the National Archives, to the entire White House staff on handling of classified information and other ethics matters (this is I believe the only time I was written about widely in the newspapers). From an ethics lawyers’ perspective it does not help to have some people arguing about whether the rules technically apply to them.

Finally, Scooter Libby got a good deal from the President; a full pardon would have been too much. Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth. I regret that we did not include in White House ethics lectures a warning “do not lie under oath” but such should be self evident, particularly after the previous President nearly lost his job over perjury or near perjury on a relatively minor matter.


Applying the Fourth Amendment to the Internet, Part I -- Technology Neutrality: (This is the first of a short series of posts on my new forthcoming article, Applying the Fourth Amendment to the Internet: A General Approach).

  For the last several years, I've been pondering how the Fourth Amendment should be applied to the Internet. The question is difficult in part because to start off you need some sort of a theory as to what the Fourth Amendment means. It's not enough to just follow the terms of existing doctrine, as the doctrine itself is largely indeterminate: What is a "reasonable expectation of privacy," after all? And what makes a search "reasonable"? That doesn't take you very far without some sort of theory about what the Fourth Amendment does.

  Nor does high-level constitutional theory answer very much here. For example, say you're an originalist. It's kind of hard if not impossible to know how that pans out. First, the original public meaning of terms like "unreasonable searches and seizures" remains hotly contested. Second, not only were there no professional police officers at the framing, there was of course no Internet. And if you're a serious originalist, you probably have to rethink the incorporation doctrine, too, which means that you may not even be regulating most police officers any more. So that doesn't necessarily take you very far, either.

  So what to do? In my new paper, I start with an assumption I call "technology neutrality." The idea here is that the Fourth Amendment should apply to the Internet much like the Fourth Amendment applies to the physical world. I therefore start with the role that the Fourth Amendment plays in regulating traditional physical investigations, and I look for ways that the Fourth Amendment should be applied to try to replicate that role online given the very different facts of the Internet. Thus, the goal is "technology neutrality": Ideally, The Fourth Amendment should play the same role regardless of whether a criminal investigation occurs via an investigation in the physical world or whether it occurs via an investigation over the Internet.

  Incidentally, for those well-versed in Larry Lessig's work, my approach ends up being something akin to Lessig's idea of constitutional "translation," although at a more specific level. Whereas Lessig sees the Fourth Amendment as a general protector of privacy, and so envisions the Fourth Amendment as sort of a roaming tool for protecting privacy online, my idea is to look more specifically at how the Fourth Amendment does and does not protect privacy and to recreate both sides of that picture in the new space.

  But why assume "technology neutrality"? To be clear, technology neutrality is just an assumption in my article: I don't actually argue for that position from first principles. If you have theoretical commitments that rule out technology neutrality, then you're just not going to get much out of the paper: It's not the paper for you.

  At the same time, I think the assumption is a helpful one to make for a good practical reason: It's what judges and Justices today think the Fourth Amendment requires. That is, the assumption of technology neutrality captures the general understanding among judges and Justices about how the Fourth Amendment is supposed to be interpreted. This understanding follows a trio of cases in 1967: Berger v. New York, Katz v. United States, and Warden v. Hayden. In all three cases, the Supreme Court had to choose at a conceptual level between the Fourth Amendment as a specific set of protections grounded in history and the Fourth Amendment as a general tool to make that make sure the police don't have too much power. In all three cases, the general view won out.

  Today, every Supreme Court Justice (and every judge I can think of) adopts that basic view. The 1967 view has stuck. The Fourth Amendment is now understood as a tool for requiring "reasonable" police practices in the sense of sensible or desirable ones. Different judges have a different sense of what that means, of course, but pretty much everyone agrees that this is the goal. And implicit in that goal is technology neutrality: If the Fourth Amendment is a general tool for requiring reasonable police practices, then presumably it should require reasonableness in equal degrees regardless of whether the case happens to involve a physical investigation or an Internet investigation.

  So for all practical purposes, we live in a world in which the legal culture and shared understandings of what the Fourth Amendment does require some kind of technology neutrality. You might like it; you might not. But it's the world we're in. What does that actually mean for the Fourth Amendment as applied to the Internet? Stay tuned for that my next post.

They Said Jehovah!

From Channel News Asia:

Malaysian religious authorities have threatened to sue the country's top legal body for using the word "Allah" on its website, in another row over the issue to hit the multi-ethnic country.

The Islamic religious council in central Selangor state said it would take action against the Malaysian Bar, which represents some 12,000 lawyers, for using the word as a translation for "God" in two online polls on its website.

Its comments came amid a long-running battle between the government and a Roman Catholic newspaper which has been threatened with closure for using the disputed word in its Malay-language edition.

The government has argued that the word should be used only by Muslims, who dominate the population of multicultural Malaysia.

The Malaysian Bar's polls asked lawyers to vote on whether any particular race in Malaysia had an exclusive right to use "Allah" and whether non-Muslim religious publications should be allowed to use the word.

"The issue raised in the polls can threaten the sensitivity of Muslims," the head of the religious council Mohamad Adzib Mohamad Isa said in a statement....

Thanks to Religion Clause and to Monty Python.


Nothing New Under the Sun:

From Liquor Stores Fear Grocery Wine Sales, about "the fight over whether Tennessee grocery stores should be allowed to sell wine, which for the third time in three years heads back to the legislature on Tuesday" (thanks to InstaPundit for the pointer):

Nine years ago, Bard Quillman retired after 30 years in the banking business and invested his savings, and his future, in Red Dog Wine & Spirits in Franklin. Immediately next door to his shop is a Publix supermarket. Quillman dreads what could happen if the grocery starts selling wine.

"Am I worried? Yeah, I'm scared," Quillman said. "This is a real-world situation for us. It shouldn't be blown off as an issue of 'convenience.'"

His shop is a high-end, specialty store, but he says cheaper wines -- box wines, jug wines, the sort of no-frills wines that groceries would likely stock -- make up the bulk of his sales, and allow him to branch out into the more exotic, specialty brands. The price of a bottle of wine at Red Dog Wine & Spirits can range from $3.50 to $200.

Quillman figures he'd lose 30 percent of his business to Publix and surrounding retail chains.... Right now, there are three places in Franklin that sell wine. If the law changes, he says there could be as many as 24.

"My employees all have health insurance, disability insurance, life insurance," [Quillman] said. Right now, he has four full-time employees, but if the law changes, "I'd have to terminate at least one of them, plus one part-time employee." ...

"This will have a devastating effect on the mom-and-pops," [Midtown Wine & Spirits manager Chris] Shearer said.... "We understand it's a convenience issue, but at the same time, there are costs associated with convenience[.]"

Now let's go back to 1845, from Frederic Bastiat's famous parody of protectionist arguments:

A PETITION From the Manufacturers of Candles, Tapers, Lanterns, sticks, Street Lamps, Snuffers, and Extinguishers, and from Producers of Tallow, Oil, Resin, Alcohol, and Generally of Everything Connected with Lighting. To the Honourable Members of the Chamber of Deputies.


You are on the right track. You reject abstract theories and little regard for abundance and low prices. You concern yourselves mainly with the fate of the producer. You wish to free him from foreign competition, that is, to reserve the domestic market for domestic industry.

We come to offer you a wonderful opportunity for your -- what shall we call it? Your theory? No, nothing is more deceptive than theory. Your doctrine? Your system? Your principle? But you dislike doctrines, you have a horror of systems, as for principles, you deny that there are any in political economy; therefore we shall call it your practice -- your practice without theory and without principle.

We are suffering from the ruinous competition of a rival who apparently works under conditions so far superior to our own for the production of light that he is flooding the domestic market with it at an incredibly low price; for the moment he appears, our sales cease, all the consumers turn to him, and a branch of French industry whose ramifications are innumerable is all at once reduced to complete stagnation. This rival, which is none other than the sun, is waging war on us so mercilessly we suspect he is being stirred up against us by perfidious Albion (excellent diplomacy nowadays!), particularly because he has for that haughty island a respect that he does not show for us [apparently an allusion to England's famous fogginess -EV].

We ask you to be so good as to pass a law requiring the closing of all windows, dormers, skylights, inside and outside shutters, curtains, casements, bull's-eyes, deadlights, and blinds -- in short, all openings, holes, chinks, and fissures through which the light of the sun is wont to enter houses, to the detriment of the fair industries with which, we are proud to say, we have endowed the country, a country that cannot, without betraying ingratitude, abandon us today to so unequal a combat.

Be good enough, honourable deputies, to take our request seriously, and do not reject it without at least hearing the reasons that we have to advance in its support.

First, if you shut off as much as possible all access to natural light, and thereby create a need for artificial light, what industry in France will not ultimately be encouraged?

If France consumes more tallow, there will have to be more cattle and sheep, and, consequently, we shall see an increase in cleared fields, meat, wool, leather, and especially manure, the basis of all agricultural wealth.

If France consumes more oil, we shall see an expansion in the cultivation of the poppy, the olive, and rapeseed. These rich yet soil-exhausting plants will come at just the right time to enable us to put to profitable use the increased fertility that the breeding of cattle will impart to the land.

Our moors will be covered with resinous trees. Numerous swarms of bees will gather from our mountains the perfumed treasures that today waste their fragrance, like the flowers from which they emanate. Thus, there is not one branch of agriculture that would not undergo a great expansion.

The same holds true of shipping. Thousands of vessels will engage in whaling, and in a short time we shall have a fleet capable of upholding the honour of France and of gratifying the patriotic aspirations of the undersigned petitioners, chandlers, etc.

But what shall we say of the specialities of Parisian manufacture? Henceforth you will behold gilding, bronze, and crystal in candlesticks, in lamps, in chandeliers, in candelabra sparkling in spacious emporia compared with which those of today are but stalls.

There is no needy resin-collector on the heights of his sand dunes, no poor miner in the depths of his black pit, who will not receive higher wages and enjoy increased prosperity.

It needs but a little reflection, gentlemen, to be convinced that there is perhaps not one Frenchman, from the wealthy stockholder of the Anzin Company to the humblest vendor of matches, whose condition would not be improved by the success of our petition....


[Richard Painter, guest-blogging, March 24, 2009 at 2:46pm] Trackbacks

One commentator here reports that the divorce papers for 2004 GOP Senate candidate Ryan mentioned the possibility of (i) public sex in a Paris bar, and (ii) a threesome with the ex-wife and with another woman.

I am not sure what is meant by a threesome, but unless this refers to a three-person prayer meeting or something of the sort, this is enough to blow the election downstate. Blow the election downstate and the GOP is dead in the water. In politics appearances count and the assumption that divorce papers under seal will remain under seal is naive. It sounds to me as if the GOP blew that Senate election fair and square and Obama won it fair and square.

Another point --- the nominees who have been problems have not been from the President's Chicago inner circle but other Democratic party stalwarts, many of whom did not work for his campaign until he got the nomination. Contrast this to the problems with the inner circles of Nixon, Carter (remember Bert Lance!) and Clinton and other presidents who brought to Washington some people from their home states who should have stayed home.


[Richard Painter, guest-blogging, March 24, 2009 at 2:18pm] Trackbacks

I am not stating a conclusion about how this matter ought to be resolved, and there are competing concerns. I am saying that the concerns I have raised ought to be taken seriously.

18 U.S.C. 207 is a statute that can carry criminal penalties. Violations are serious, not "minor" as some comments here suggest. Bush Administration officials were told in ethics lectures that all ethics rules are important, but that this and other criminal statutes are extremely important. I believe the advice in the Obama Administration is the same. I have no idea what was said in ethics debriefings for departing employees in the Clinton Administration when Holbrooke left the State Department, but the rules are clear and he should have followed them.

The AIG facts speak for themselves. The company was very badly managed for a long time (there was another round of scandals in 2004-2005 before this one). The directors' job was to prevent this kind of thing from happening and they did not do their job. The taxpayers now will be paying the bill.

Afghanistan and surrounding countries have problems with corruption and incompetence. Dealing with corruption and incompetence there has become our problem. I hope the President has somebody over there who can understand and address these issues.

Once again, my concern is that these matters be taken seriously, not necessarily that anyone be removed from office. The President's vetting process also should catch these types of things so they can be addressed honestly and openly at the time a nomination or appointment is made.

Richard W. Painter


The Fourth Amendment and the Internet: My new draft article, Applying the Fourth Amendment to the Internet: A General Approach, will be published this coming year in the Stanford Law Review. I have posted an updated version with a Table of Contents (and a few minor corrections) here. I'll try to blog a few of the key ideas of the article in the next few days; my hope is that a number of readers may find it of interest.

[Richard Painter, guest-blogging, March 24, 2009 at 1:51pm] Trackbacks
Ethics in Illinois:

I spent years listening to criticisms – some fair, but many unfair – of President Bush and members of his Administration. I was particularly troubled when government ethics was used as a political weapon instead of seen as a problem that both parties need to address (see page 267 of my book, Is Partisanship an Obstacle to Ethics Reform?). I do not agree with some of President Obama’s policies (I worry that the dramatic expansion of government will create many problems for our Country including problems with government ethics). I strongly object, however, to using ethics as a political weapon against the President in circumstances where it is not justified.

I am still looking for convincing evidence that the President can be blamed for corruption of Chicago politicians. I don’t see it. To the contrary, the President appears to have jumped ahead of many other Illinois Democrats because he was perceived to be both honest and intelligent, and voters wanted a change.

Both political parties in Illinois are to blame. Illinois may soon become the first state with two governors, one Republican and one Democrat, who serve their terms concurrently. Terms of incarceration that is. Governors Ryan and Blagojevich, if he is convicted, should consider sharing a cell; they can talk politics and perhaps learn more about bipartisanship. A Governor’s Wing in an Illinois federal prison might also be appropriate because unless things change there will be future inmates with a similar pedigree.

I know something about Illinois politics because I lived there not only as a law professor in the late 1990’s and early 2000’s but also as a teenager in the 1970’s, when Dan Walker (D) was Governor. Governor Walker later upheld an Illinois tradition by serving 18 months in prison for bank fraud.

Illinois, however, should be proud of a long line of politicians who rose to prominence despite corruption in the political parties that supported them. Adlai Stevenson, Adlai Stevenson III., Charles Percy, Paul Simon, Peter Fitzgerald, and many other names come to mind. The evidence suggests strongly that President Obama fits within this category.

Indeed, in 2004 it was corruption in the Illinois Republican Party, not the Democratic Party, that did the most for then State Senator Obama’s career. Peter Fitzgerald, a first term Republican, held the U.S. Senate Seat, which he had won from Carol Moseley Braun. I got to know Senator Fitzgerald while I was teaching at the University of Illinois. He was a fine Senator, but he did not always do what made him popular.

Fitzgerald had jumped in line ahead of Republican machine politicians and in office he stood up to them. He insisted that the Lincoln Library at the University of Illinois not be used for political patronage by Governor Ryan. With a bribery scandal brewing in the Governor’s office, Senator Fitzgerald asked President Bush to appoint a United States Attorney who would prosecute Republicans as well as Democrats for political corruption (Patrick Fitzgerald, who is no relation to the Senator, got the job, and then did his job which eventually landed the Governor in prison). Governor Ryan’s Republican machine made it clear that there would be a primary challenge to Senator Fitzgerald in 2004. Fitzgerald probably would have survived, but he would have had to spend millions of his own money to keep the seat. He called it quits.

The Republicans then found a nominee named Jack Ryan (no relation to the Governor). Things looked good until the Democrats found Ryan’s divorce papers in a California court file (the Republicans did not think to look into the divorce before nominating Ryan). When the divorce papers revealed tales of Paris s&m bars and other salacious material, Ryan was finished (that kind of thing does not fly downstate where the Republican votes are).

At that point, I strongly suggested that the Illinois Republican Party look to its younger generation of rising stars, perhaps State Representative Chapin Rose (R – Mahomet). Even if it lost the seat, the Party would have a chance to showcase honesty and intellectual gravitas in its younger ranks. This suggestion was ignored. For a while it looked as if a dogcatcher, provided it was Governor Ryan’s dogcatcher, could get the nomination. I even considered making a go for it on a reform platform – but I knew that my talents, whatever they might be, lay elsewhere.

The Republicans did worse than the dog catcher. Alan Keyes is a bright man with interesting ideas, but he ran a lackluster campaign, most of it from offices out of state. State Senator Obama was destined to score a blowout, winning the entire State by margins Democrats had thus far achieved only in Chicago. He was going to be the star of the 2004 Democratic convention. The rest is history.

I have since left Illinois, but I am saddened by the fact that so many governors and other Illinois politicians have headed off to jail over so many years, and politicians who are corrupt remain in office. Many Illinois politicians are not corrupt, but they tolerate corruption. Some, including now President Obama and State Representative Rose whom I mentioned earlier and who served on the committee that impeached Governor Blagojevich, speak out against corruption. The fact that these people serve in the Illinois legislature with some corrupt colleagues – or that they may meet some corrupt people along the way — should not be held against them unless we do not want anybody honest going into politics in Illinois. Regardless of party affiliation, I hope we can look back with pride upon the era of Stevenson and Percy, be grateful in the present for President Obama’s commitment to ethics whether or not we agree with his policies, and look forward to a new more ethically fit generation of leaders in Illinois and around the Country. This has nothing to do with being a Republican – it has everything to do with being an American.


A New World Currency to Replace the Dollar.

China and Russia are proposing a new world reserve currency to replace the dollar. It would be in essence a basket of all major currencies.

This is an old idea, but its recent reintroduction is thought to reflect unease with the US-triggered recession and the US’s potentially inflationary response to that recession.

China’s central bank on Monday proposed replacing the US dollar as the international reserve currency with a new global system controlled by the International Monetary Fund.

In an essay posted on the People’s Bank of China’s website, Zhou Xiaochuan, the central bank’s governor, said the goal would be to create a reserve currency “that is disconnected from individual nations and is able to remain stable in the long run, thus removing the inherent deficiencies caused by using credit-based national currencies”.

“This is a clear sign that China, as the largest holder of US dollar financial assets, is concerned about the potential inflationary risk of the US Federal Reserve printing money,” said Qu Hongbin, chief China economist for HSBC. . . .

“The outbreak of the [current] crisis and its spillover to the entire world reflected the inherent vulnerabilities and systemic risks in the existing international monetary system,” Mr Zhou wrote.

At first glance, it would seem that such a new currency would be very bad for the US, its dollar, and its staggering recent increases in debt.

Whether replacing the dollar as the reserve currency would be bad for the rest of the world is hard to say. Despite President Obama's being a strong internationalist, I doubt that he will be significantly more positive about the prospect of a new world currency than Geithner and Bernanke are -- and both of them are negative on the idea.

This possibility is yet one more reason why the US Treasury should be issuing lots of 30, 50, and 100-year bonds while interest rates are still low. And then we need to stop the Federal Reserve from buying them!

Related Posts (on one page):

  1. Mixed Signals on a New World Currency.
  2. A New World Currency to Replace the Dollar.

Dog Bites Man: The Supreme Court has reversed the Ninth Circuit in an AEDPA case yet again, this time in Knowles v. Mirzayance. Interestingly, the Court held not only that relief wasn't available under AEDPA, but that no relief would be available even under a de novo standard.

Does Concealed Carry Significantly Affect the Environment?

Last December, the Department of the Interior promulgated a midnight regulation relaxing the federal prohibition on gun possession in national parks and wildlife refuges. Under the new regulation, individuals would be permitted to possess concealed, loaded, and operable firearms in national parks and refuges insofar as such possession was permitted under the laws of the state in which a given park or refuge is located.

Anti-gun and pro-conservation organizations, including the Brady Campaign to Prevent Gun Violence and the National Parks and Conservation Association, promptly sued alleging, among other things, that the Interior Department failed to comply with the National Environmental Policy Act (NEPA) in issuing the new rule. Specifically, the complaining groups alleged, Interior conducted neither an environmental impact statement (EIS) or environmental assessment before instituting the change. In response, the Interior Department argued that no EIS or EA was required because loosening the restrictions on concealed carry in national parks and refuges would have no environmental impact whatsoever. Specifically, they argued that because the rule change does not allow any new uses of firearms in national parks and refuges, they could presume that the rule change would not have a significant effect on the environment, and therefore no further analysis was required. Indeed, Interior argued that the rule change itself would "not have any actual effects on the environment" because it did not "authorize any actual impacts on the environment."

Judge Colleen Kollar-Kotelly did not find the Interior Department's arguments all that convincing and, last Thursday, issued a preliminary injunction barring implementation of the new rule. This was not too surprising. As Judge Kollar-Kotelly noted in her opinion, the Interior Department had long maintained that concealed carry should be prohibited in national parks so as to minimize potential threats to wildlife, natural resources, and park visitors. The Interior Department's policy may have been misguided, as concealed carry is allowed in national forests and other federal lands, but that does not mean the policy change has no effect. Further, she noted, many of those who supported the rule change argued that allowing concealed carry would enable park and refuge visitors to protect themselves from potentially dangerous wildlife. Again, these may be good arguments in support of the rule change, but they undermine the claim that the revision would produce no environmental effects.

Interior's instinct to harmonize the regulation of federal lands with the laws of the states in which such lands are located in laudable, but it does not excuse failing to comply with applicable legal requirements. The Interior Department's decision not to conduct a full EIS was probably justified, but I think this conclusion should have been based upon an environmental assessment. Interior may well have been correct that such effects would have been rather small -- and, if so, an EA would have so found -- but it is implausible that the rule change would have had no effect at all. Given that the Interior Department had long maintained a contrary position, it is difficult to accept its revised claims without greater substantiation. Whenever an agency alters a longstanding policy position, it will be subject to greater judicial scrutiny, and Interior failed to meet the greater burden here.

I did not follow the development of this rule all that closely, but I suspect the ultimate decision not to conduct an EA, let alone a full EIS, was motivated by the Administration's desire to finalize the rule before the Obama team took over. Conducting greater analysis, even an EA, would have made this difficult, but it also made the new rule more vulnerable. If my supposition is correct, this is further evidence that "midnight" rulemaking is not conducive to sound rulemaking, even when the rule change is a good one.

Related Posts (on one page):

  1. No Appeal of Concealed Carry in Parks Decision:
  2. Does Concealed Carry Significantly Affect the Environment?

The Real "Toxic Assets":

George Will on our political leaders.

Speeches This Week: I will be speaking on "Was Lochner Right? Natural Rights & The 14th Amendment":
At noon today at Georgetown Law (600 New Jersey Ave NW) in McDonough 207; and

At 5pm on Thursday at George Mason Law (3301 Fairfax Drive, Arlington, Virginia) in room 221.
Next week I will be speaking on Monday at noon at Duke and on Tuesday at noon at University of North Carolina.

Obama, Bush, emergencies, and executive power.

Here you can find some thoughts on the emerging evidence of the Obama administration's position on executive power (written with Curt Bradley). And below a bloggingheads segment with Jack Balkin (I am the barely sentient one of the two speakers, not yet recovered from a vacation). Do emergencies help presidents or hurt them? I say they hurt them. FDR was an exceptional case. The Caesar/Cromwell theory that presidents use emergencies to become dictators—and that fear of this phenomenon should be a part of our constitutional politics—should be interred in an eighteenth century tomb. Jack disagrees. He sees presidents "creating reality"; I see them being devoured by reality.

Best Beer With a Law-Related Name: Lagunitas Undercover Investigation Shut-Down Ale. I like everything by Lagunitas, but this beer is my favorite. You can read some reviews of it here. Oh, and get it while you can: It's a seasonal, so it won't be available for long. More on the law-related title here.

[Richard Painter, guest-blogging, March 24, 2009 at 12:23am] Trackbacks
Sex, Drugs, Rock and Roll, and . . . Money:

My second post in this discussion concerns the pre-appointment/pre-nomination vetting process for Executive Branch office holders nicknamed “sex, drugs and rock and roll.”

As its nickname suggests, much of this process concerns matters that could embarrass the President, but that may have little bearing on a nominee’s ability capably and faithfully to carry out the duties of his or her office. Still, in a scandal obsessed political culture, these matters are important.

Here how it works (see pages 84-89 in Chapter 3 of my book). The White House ethics lawyer (that was my job from 2005 to 2007) talks to a potential nominee about his or her investments, for-profit and non-profit board memberships, and other entanglements that could create problems under conflict-of-interest rules. The candidate then talks with a different lawyer, the White House clearance counsel, about his or her educational record, police record (if any), driving record, professional licenses and employment record, marriages, lawsuits, personal life and similar matters. In short, after the ethics lawyer’s “money talk” there is a “sex talk.”

After a preliminary decision to appoint or nominate someone to a position, an FBI background investigation is begun to confirm what was said. The candidate also agrees to release his or her tax returns to the White House. The White House sends these over to the Treasury Department for review.

I know of one instance in the eight years of the Bush Administration when this part of the process went wrong, badly wrong. That was the Bernie Kerik nomination as Secretary of Homeland Security. Some blogs reported that I was the person who vetted Kerik. That is not true, as he was nominated and the nomination was withdrawn months before I began work at the White House. Fact is that nobody vetted Bernie Kerik, which was the problem. Never again, I believe, was the vetting process short circuited and clearance counsel left out of the loop. Lesson learned.

The new Administration has not been so fortunate. I admire our President, and I am inspired by his vision of a more ethical Washington. He is too smart, however, not to know that a poor vetting process quickly leads to poor appearances, and that poor appearances give opponents a chance to score quick political points. Most of the vetting problems for nominees were while he was President-Elect, but the President needs to fix the process now. He cannot afford more mistakes.

Never mind the Treasury Secretary who didn’t pay his taxes (if he makes it past April 15, he probably gets to keep his job). Never mind the failed attempts to fill cabinet posts at Health and Human Services and the Commerce Department. Let’s look at another issue that was under the radar screen and apparently not part of the vetting process.

When I was at the White House, we looked carefully at corporate directorships. Membership on the board of a company with serious corporate governance problems was a strike against a potential nominee.

This makes sense. People who cannot run private companies should not help run America.

Corporate board members are responsible for hiring, supervising and compensating the CEO and other senior officers. Many corporate board members do their job well. A few do not. These few are not the strongest candidates for high level government jobs that require the public trust.

How then could a high ranking position it the State Department in 2009 go to Richard Holbrooke who was a director of AIG between 2001 and 2008, who was on AIG’s compensation committee, and who resigned from AIG in the summer of 2008 just as things were falling apart? Holbrooke is a talented if controversial diplomat with a track record in Kosovo, and he brings this experience to his present position as liaison between the United States and parties interested in the War in Afghanistan. Nonetheless, news reports suggest that the White House did not think about AIG when appointing Holbrooke, and did not consider whether a man who could not keep AIG’s risk prone management in check can effectively deal with a geographic region riddled with corruption, not to mention Al Queda and the Taliban.

And there is more. Holbrooke left the Clinton Administration for investment banking. The Department of Justice Public Integrity Division later charged that he violated post-employment conflict of interest rules by representing back to the State Department on behalf of an investment bank. The charges were settled with payment of a $5,000 fine. Details are in an August 14, 2000 memo titled 1999 Conflict of Interest Prosecution Survey sent by the Office of Government Ethics to designated agency ethics officials:

In 2001 Holbrooke became a director of AIG. According to the Associated Press, SEC filings indicate that AIG paid Holbrooke hundreds of thousands of dollars in cash and stock in 2006 and 2007 (2008 compensation figures are not yet available).

One could argue perhaps that AIG was a good corporate citizen in its charitable contributions. These also, however, were in one respect problematic. AIG and the until recently AIG-affiliated Starr Foundation contributed a lot of money over several years to the American Academy in Berlin, itself a good cause. Dig deeper, however, and one finds that the American Academy was founded by none other than Holbrooke who also served as its Chairman. Is it pure coincidence that Holbrooke was one of AIG ‘s outside directors who helped decided how much money AIG’s senior executives got paid? Conflicts of interest of this sort are not per se illegal (perhaps they should be) but they do not reflect well on corporations or the directors who run them.

So far, the White House response to Holbrooke’s involvement in AIG has been tepid at best. According to the AP, the White House said that Holbrooke was “unaware” of the big retention bonuses handed out by AIG to its key employees. That’s my point. A company’s directors should be aware of how much executives get paid because its part of their job to be aware.

President Obama has observed that, “[n]obody here was responsible for supervising AIG and allowing themselves to put the economy at risk by some of the outrageous behavior that they were engaged in." The President probably meant to say that somebody had that responsibility at AIG, and that somebody did not do their job.

The White House may decide that, despite these concerns, Holbrooke should remain in his current post as liaison to Afghanistan. Many factors, not just his role in AIG, are relevant to appointing and retaining an official in such a position. Holbrooke may have good intentions; he may just not be very careful. Nonetheless, the White House should make it clear that these concerns are not trivial and that in general how well one does as a fiduciary for a public company is a very relevant factor in predicting how well one will do as a fiduciary for the public.


[Richard Painter, guest-blogging, March 24, 2009 at 12:07am] Trackbacks
Privatize the White House?

A number of you have suggested going in the opposite direction than I propose and have all White House employees be privately paid operatives of the President's political party, in essence to privatize the White House.

Some would say we are already there, with the exception that the government pays the salaries, including salaries for time people spend on partisan political work during normal working hours.

There is no escaping the fact that there is an enormous amount of private influence on our government. That is fine, as we have a First Amendment right to petition our government. The problem of course is that a very few people who pay for that right, with campaign contributions, contributions to other organizations that support political candidates, or lobbyists, get a lot more access than the rest of us. A few get into the Oval Office and for the rest, well . . . there is Lafayette Park.

My proposal is to shift White House employees other than the President and Vice President, and to shift senior political appointees in some other agencies, into the more restrictive Hatch Act rules that now apply to some specific agencies in intelligence and other fields. For those who do not agree with this approach, an alternative would be at least not to have White House employees in their "personal capacity" recruit other Administration officials for political work, in effect setting up an entire unofficial reporting structure that parallels the official. Partisan political activity in such an environment is hardly "personal" rather than official, and is in some respects not even voluntary.

We should also require that time records be kept and political activity be fully disclosed (see page 253 of my book). This should include political travel paid for by candidates and political parties. Presently, despite the detailed FEC reporting regime imposed on campaigns, it is very difficult for the public to find from the FEC much information about where any particular official (for example Rahm Emanuel or Karl Rove) traveled on a political party's or candidate's dime, how many trips there were and how much they cost (see page 259 of my book). Everyone, however, can find out if their neighbor gave over $200 to a federal candidate, to whom, when it was given and exactly how much. Something is wrong here. Excessive disclosure on the one hand discourages smaller donors, while the FEC web site tells us very little about how political activity is used to provide access to the people who matter.

Enough about government ethics and politics, my next post will be about work at the White House that involves . . . sex, drugs and rock and roll.


Monday, March 23, 2009

Is the Supreme Court Anti-Business?

A year ago commentators regularly claimed that the Roberts Court was a "pro-business" court. This year's two preemption decisions, Altria v. Good and (in particular) Wyeth v. Levine, have caused some to reconsider. Michael Greve of the American Enterprise Institute goes even farther, arguing the Wyeth decision is positively disastrous for business and reflects a poor understanding of federalism. In an essay posted today on NRO, "Preemption Strike," Greve rips the Court for extending "an open invitation to juries, state officials, and tort lawyers to help themselves to even more of the diminishing proceeds of America’s productive economy." As Greve notes, federal preemption litigation is "asymmetric." Business wins when it can hold its ground, but losses risk unleashing floods of new litigation, so one big loss can overshadow a string of victories.

Greve is particularly critical of Justice Thomas' rejection of implied preemption:

“If Congress wants to preempt, let it say so clearly,” rings the refrain. Justice Thomas’s opinion is the most extreme expression of that position to date. Yet its obtuseness borders on willful denial. The states have every incentive and myriad ways to circumvent federal law. Because Congress cannot possibly foresee those stratagems, it cannot “clearly” preempt them. For example, the clearest federal preemption provision of all prohibits states from administering “a law or regulation related to fuel economy standards.” California’s proposed greenhouse-gas standards do not simply “relate to” fuel economy; they are fuel-economy standards. Even so, federal courts have upheld them against preemption challenges because California describes them as emission standards instead. . . .

The Stevens and Thomas opinions in Wyeth teem with encomia to “federalism” and the need to protect states against federal overreach. The court, they say, should not favor Congress by implying preemption. But the federalism analysis is a fantasy, and the protestations of neutrality are false.

Federal usurpation? Never in our history have the states wielded comparable power, and comparably destructive power, over the commerce of the United States. What “federalism” has come to mean, evidently, is the states’ right to exploit the same branch of interstate commerce 50 times over. That absurdity is but a facet of a broader problem — the proliferation of fragmented, semi-autonomous, faction-ridden agencies and entities, from multi-state attorney-general “investigations” to local juries, all of which exercise public power without coordination or effective control. Implied preemption is, or was, one of the very few checks on that tendency.

The court’s evisceration of that check is not an act of judicial neutrality; it is an abject surrender of constitutional responsibility. We are experiencing a malignant form of institutional competition — a three-branch, 50-state race for first prize in the gratuitous destruction of American business and industry. After Wyeth, the Supreme Court is leading by a nose.


EPA Greenhouse Gas "Endangerment" Finding On the Way:

The NYT reports that the EPA is preparing to issue a formal endangerment finding in response to the Supreme Court's Massachusetts v. EPA decision. From what I hear, the finding will be made on or before April 30. Once made, this finding will trigger a wide range of regulatory initiatives under the Clean Air Act. As I've said repeatedly, I believe that the agency has little choice on this matter, and even if the Obama EPA were not inclined to pursue regulation of greenhouse gases, it could not be avoided legally.

The WaPo story on EPA's plans notes that the endangerment finding will conclude that climate change due to greenhouse gas emissions pose a threat to both public health and human welfare. This is potentially significant, as it would trigger broader regulation under the Clean Air Act's NAAQS provisions. (It was for this reason that some in the Bush Administration sought to limit any endangerment finding to "welfare," and exclude "health".)

A practical effect of the finding will be to increase the pressure for federal climate legislation. Assuming that greenhouse gas emission controls are desirable, the Clean Air Act is a particularly poor way to do it. The law is not particularly flexible or cost-effective, particularly if it were to be applied to greenhouse gases. The most popular alternative, right now, is to replace Clean Air Act regulation of greenhouse gases with a cap-and-trade regime. Such systems are theoretically quite efficient, but will operate as a hidden tax. A cap-and-trade system for greenhouse gases would also unleash a torrent of rent-seeking that could overwhelm the benefits of the plan. Far preferable, in my view, would be the imposition of a modest, revenue-neutral carbon tax, the replacement of traditional subsidies with prizes, and innovation-enhancing regulatory reforms.


Does the Clean Water Act Need to Be "Restored"? A Debate:

This Thursday I will be in Boston to participate in a panel discussion on whether the Congress should enact legislation to "restore" the Clean Water Act in response to the Supreme Court's decisions in SWANCC v. Army Corps of Engineers and Rapanos v. United States. Other panelists will include Reed Hopper of the Pacific Legal Foundation, Patrick Parenteau of the Vermont Law School, and Christopher Kilian of the Conservation Law Foundation. Here's the panel description:

In the 2006 plurality decision in Rapanos v. United States, the Supreme Court limited the scope of the Clean Water Act’s protection of “navigable waters” to only include those bodies of water that are “permanent, standing or continuously flowing,” and thus did not apply to channels through which water flows only some of the time. A concurring opinion by Justice Kennedy held that Clean Water Act jurisdiction extended only to those wetlands and waters with a “significant nexus” to navigable waters. Substantial litigation and regulatory uncertainty followed in the wake of the Rapanos decision, as courts, regulators, and private landowners sought to identify the statutory limits of federal regulatory authority. In response to Rapanos and the resulting regulatory uncertainty, Representative James Oberstar (D-MN) introduced the Clean Water Restoration Act. According to the Congressman’s website, this legislation would “fix the Clean Water Act.” The legislation, if enacted, would significantly expand federal regulatory authority over waters and wetlands and would allow the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are unconnected to any a major navigable waterway. Is such legislation sound policy? Would the Clean Water Restoration Act provide regulatory uncertainty or enhance environmental protection? Or would it create further regulatory nightmares for private landowners? Is Congress likely to consider this legislation during its current session? If so, is the Obama Administration likely to support it?
Further details and reservation information are here.

I testified at a House Transportation Committee hearing on the proposed "Clean Water Restoration Act" last spring, and blogged on the proposal here and here.

Law Student on the People's Court: So this clip is old, and it's from a TV show not a real court, but it's so painful and yet engaging I though readers might be interested. It's of a second-year law student appearing on "the People's Court" and getting his rear-end handed to him for not being respectful to the judge.

Ouch! Of course, the irony is that this sort of disrespect is quite common on TV shows about the courts, and this is a TV show. Oh well.

  Thanks to Sua Sponte for the link.

The Guy Who is Really Under Pressure: With David's news that Yale Law Dean Harold Koh will be the State Department Legal Adviser, and with the confirmation of Harvard Law Dean Elena Kagan as Solicitor General, can you imagine how much pressure Stanford Law Dean Larry Kramer is under? Stanford is trying to be competitive with Yale and Harvard. But how can a law school stay on top if its Dean spends the Obama Administration as a mere law dean?

Are the markets making fun of those who attributed its fall to Obama? Or maybe it was never that simple?

A number of commentators have asserted a causal relationship between Obama's presidency and the stock market's decline in the past couple of months — that the market has plunged because of Obama's plans (see a short compilation here). But wait a minute — with today's gains, the markets are now about where they were when Obama was inaugurated (the S&P 500 is up 2% since then, the Dow is down 2% since then). For all those who were so sure that the market was down because of Obama, I'd be interested to know how they explain the upswing. I'm not holding out hope, though, that they will say either that the downswing and the upswing were caused by Obama or, more sensibly, that they were wrong to be so confident about the cause of the downswing. (Of course, the reverse could also be true — people who donwplayed the causal connection might now trumpet the upswing. But I hope they won't be so foolish.)

Fun note: since Michael Boskin's article "Obama's Radicalism Is Killing the Dow" appeared on March 6, 2009, the markets are up almost 20%. Time will tell (and I'm not holding my breath, given the unpredictability of the markets), but it may be that Boskin's pessimistic message was a perfect (reverse) signal — the exact time to buy.


Reflections on the Final Episode of Battlestar Galactica:

Last Friday was the final episode of Battlestar Galactica. In my view, BSG was easily the best science fiction TV series of the last decade, and one of the two or three best SF series of all time. It had realistic characters, a fascinating setting, and did an insightful job of posing important political and moral issues. At least in the first two to three seasons, the show also had a more interesting and more realistic portrayal of political institutions than almost any other TV series - SF or otherwise. While I disagreed with the show's mostly left-wing political orientation, I also appreciated its many strengths. For previous posts discussing BSG and its portrayal of law and politics, see here (including earlier linked posts below), and here.

However, as often happens with TV shows, the series' quality declined towards the end. And the final episode was in my view particularly weak. Further discussion below the fold, and includes major spoilers. Proceed at your own risk, and please don't complain about spoilers in the comments. Spoilers have happened before and they will happen again!



Dean Koh to State Department:

I just received an email from Yale Law School informing me that Dean Harold Koh is to be nominated by President Obama to be Legal Adviser of the U.S. Department of State. He is stepping down as dean. Prof. Kate Stith will be interim dean.

Most observers seem to think that Harvard has gained ground on Yale while Kagan and Koh have been the deans at these schools. In part this is because Kagan was an unusually effective dean, and in part because Harvard had "underperformed" previously, especially during the tumultuous 80s, when factional fighting on the faculty brought hiring to a near-standstill.

Of particular interest to many VC readers, Harvard under Kagan seemed far more open to hiring right-of-center faculty than did Yale under Koh, and, from what I understand the Harvard Federalist Society thrived in ways that its counterpart at Yale did not.

Now that both of these deans are leaving to join the Obama administration, it will be very interesting to follow developments at both schools. Meanwhile, congratulations to Dean Koh.

[Richard Painter, guest-blogging, March 23, 2009 at 5:04pm] Trackbacks
Defining Political Activity:

There is no intent in my proposal to remove politics from the White House or from the Executive Branch. Good policy decisions must be politically informed decisions, or the policy will go nowhere (e.g. 1993 Clinton health plan). The President needs good political advisors. The question I present is whether these advisors and other political appointees ought to work only for the President as chief executive of the United States or also for the President as head of a political party. Should they wear one hat or two?

The point about the email of Karl Rove and others is precisely the type of thing I am talking about. Wear two hats and have two email accounts, two Blackberries, two cell phones, two fax machines, two sets of lawyers etc. means you will have many problems. It does not matter how hard you try to keep the official and the political party work separate, One will always spill over into the other. Put away the political party gadgets and stick to official work, and life will be easier. The political party will be an outside constituency, and an important one, but you will not work for the political party as well as for the government.

Defining appropriate and inappropriate political activity is not an easy task, but for purposes of this discussion we should look at some of the lines the law has already drawn. Nowhere, it should be noted, does the law seek to require that policy decisions in any agency – even agencies subject to the strictest Hatch Act regulations — be devoid of intent to please political supporters of the President or his political party. It is the day-to-day interaction between federal employees and political parties and political candidates that is subject to regulation.

For purposes of the Hatch Act rules, federal employees are divided into two categories, those subject to the general rules and those who are subject to stricter rules or who are “Hatched.” An important subset of the first category is employees of the Executive Office of the President and holders of Presidential appointed Senate confirmed positions in the agencies. This subset of the first category is permitted to engage in partisan political activity in government buildings and during normal working hours as well as after hours.

The First category is subject to the following rules that apply to most federal employees: These employees may- • be candidates for public office in nonpartisan elections • register and vote as they choose • assist in voter registration drives • express opinions about candidates and issues • contribute money to political organizations • attend political fundraising functions • attend and be active at political rallies and meetings • join and be an active member of a political party or club • sign nominating petitions • campaign for or against referendum questions, constitutional amendments, municipal ordinances • campaign for or against candidates in partisan elections • make campaign speeches for candidates in partisan elections • distribute campaign literature in partisan elections • hold office in political clubs or parties

These employees may not- • use official authority or influence to interfere with an election • solicit or discourage political activity of anyone with business before their agency • solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations) • be candidates for public office in partisan elections • engage in political activity while: o on duty o in a government office o wearing an official uniform o using a government vehicle • wear partisan political buttons on duty

Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies: Administrative Law Judges (positions described at 5 U.S.C. ?5372) Central Imagery Office Central Intelligence Agency Contract Appeals Boards (positions described at 5 U.S.C. ?5372a) Criminal Division (Department of Justice) Defense Intelligence Agency Federal Bureau of Investigation Federal Elections Commission Merit Systems Protection Board National Security Agency National Security Council Office of Criminal Investigation (Internal Revenue Service) Office of Investigative Programs (Customs Service) Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms) Office of Special Counsel Secret Service

These employees may- • register and vote as they choose • assist in voter registration drives • express opinions about candidates and issues • participate in campaigns where none of the candidates represent a political party • contribute money to political organizations or attend political fund raising functions • attend political rallies and meetings • join political clubs or parties • sign nominating petitions • campaign for or against referendum questions, constitutional amendments, municipal ordinances

These employees may not- • be candidates for public office in partisan elections • campaign for or against a candidate or slate of candidates in partisan elections • make campaign speeches • collect contributions or sell tickets to political fund raising functions • distribute campaign material in partisan elections • organize or manage political rallies or meetings • hold office in political clubs or parties • circulate nominating petitions • work to register voters for one party only • wear political buttons at work

This information is available at the Office of Special Counsel Web Site


Job Talks for Laterals: Here's a short idea to update my post below on entry-level hiring for law professor jobs. It seems to me that one way to level the playing field between the entry-levels and the laterals would be to have lateral candidates present any paper they have written in the past five years (or some equivalent period). That is, the expectation wouldn't necessarily be of a new draft or forthcoming paper, as we have now with the widespread fiction of treating a job talk as if it were just a workshop. That way, a lateral candidates wouldn't have to go with whatever they happen to have on their plate, but could pick from what they have done relatively recently to find the paper most conducive to a job talk. I suspect that would help laterals give better presentations, helping to level the polish-and-style playing field and giving faculties a better sense of what a lateral candidate can offer.

The AIG Bonus Tax and the Spending Clause:

Even if courts are unwilling to strike down a 90 percent tax on bonuses paid to AIG executives as a unconstitutional Bill of Attainder, might the provision be vulnerable on other grounds? As written, the provision would seem to present Equal Protection and ex post facto issues — though such arguments might well be losers in court. I am also wondering whether the tax could run afoul of the constitutional limits on the spending power.

There are not too many judicially enforceable limitations on the spending power. One of the few is that Congress must impose conditions on the receipt of federal funds "unambiguously." This requirement ensures that the recipient of federal funds has, in fact, consented to the conditions when accepting the federal money, and prevents the federal government from altering the terms of the deal after the fact. Congress may impose new conditions going forward, but it may not impose new conditions on federal grants after the fact or interpret ambiguous language in order to impose limitations that were not clear to the recipient up front.

In this case, there is no question that the tax on bonuses was imposed after the fact. So the question would be whether the tax can be viewed as a condition placed on the receipt of federal funds. While not put forward as a condition, the tax would seem to operate that way. The tax would explicitly apply only to those who receive federal TARP funds. So, in effect, the tax is a condition on the receipt of federal money: If you take TARP money, you cannot reward executives with bonuses that the federal government deems to be exorbitant. If Congress could not explicitly impose such a condition after the TARP money went out, why should Congress be able to achieve the same end by labeling the condition a "tax" on bonuses paid by fund recipients?

Most of the relevant cases in this area involve grants to state governments (see, e.g., Pennhurst, Dole, Va. Dept. of Education v. Riley), but it is not clear to me why the principle should not carry over to the private context. Insofar as Congress is using the spending power to regulate (or punish) behavior, it seems to me that this restriction should apply. Congress may be free to tax all exorbitant bonuses paid by financial firms, and it is free to limit the payment of such bonuses by future recipients of federal funds, but why should Congress be able to selectively "tax" bonuses paid by TARP recipients after the fact.

Another potential difficulty would be that the individual challenging the tax would be a bonus recipient, and not a direct recipient of federal TARP funds. Again, however, I am not sure why this should make a principled difference. (Whether a court would ever accept this argument is another matter entirely.)


The Changing Entry-Level Market for Law Prof Jobs: Over at CoOp, Corey Yung has an analysis of new entry level hires at law faculties, as collected so far by Larry Solum. As Corey notes, the really big switch based on the numbers so far is towards more candidates with fellowships and Visiting Assistant Professor gigs: Of the 95 new hires so far with bio info, 58 were fellows or VAPs. That's a huge shift in just the last few years.

  On the whole, I think this is a very good change. The culture of most law schools makes tenure a very low hurdle, meaning that entry level-hiring is hiring for an entire career unless the candidate decides to go elsewhere. It makes sense for law schools to get as much information as they can before making such hires: An extra year or two of preparation provides more recommendations, more writing, and usualy some teaching to help that decision be at least a little bit more informed.

  Plus, it's certainly rational for a candidate who can afford it to do a VAP or fellowship. The one or two years of training often provides a quantum leap in a candidate's marketability: You learn to walk the walk and talk the talk. If a candidate's goal is to go to the highest ranked or most prestigious school they can, it's very much worth it: It's much easier to get noticed as an entry-level than as a lateral. I don't like the fact that this favors wealthier candidates who can afford to take a low-paying fellowship for two years, but so it goes.

  The one concern I have from a school's perspective is that I suspect the new norm of the VAP/fellowship encourages more entry-level hiring than is optimal. Schools often debate the right mix between entry-level hiring and lateral hiring: entry level candidates are the folks who have never had a tenure-track job, while lateral candidates are usually tenured stand-outs from other (typically lower-ranked) schools. My own view is that schools that can get away with it should do as much lateral hiring as possible: The best way to build or maintain a top faculty is to hire proven scholars with known records.

  My sense is that the high numbers of VAP/fellowship entry-levels encourages more entry-level hiring, however, because it leads to the entry-level candidates being much more polished than the laterals. This may seem odd at first: How can a newbie be more polished than an old pro? The trick is that entry-level VAPs have been preparing their jobtalks for 2 straight years. They are quite likely to provide a very polished presentation after many moots and rounds of edits. The substance may be lacking, but the style is likely to be strong.

  In contrast, laterals candidates may be sitting at their office one day, get a call, and then may be giving a job talk in a few weeks that they have never given before or really thought through. It may be a decade or more since they went on the market or worried about these sorts of presentations. As a result, they'll tend to give much less polished presentations than entry-levels with VAP experience. Given the importance of polish and presentation to the hiring process — not a good thing, in my view, but my sense is that it's a reality of the hiring process — I fear that this will l lead to more entry-level hiring than is optimal among the schools that have a clear choice. Of course, this creates a market opportunity for the schools who recognize that to pick up strong laterals, but it's easier to recognize the market opportunity than to move a faculty to take advantage of it.

Related Posts (on one page):

  1. Job Talks for Laterals:
  2. The Changing Entry-Level Market for Law Prof Jobs:

Was Israel's Gaza Campaign Proper Under the Law of Armed Conflict?

Professor David Luban of Georgetown and my colleague Amos Guiora have this interesting exchange about Israel's recent incursion into the Gaza strip.

Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles and that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. Prof. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Prof. Luban's article is entitled "Was the Gaza Campaign Legal;" Prof. Guiora's is entitled "Proportionality 'Re-Configured.'" Interesting reading.


Is the AIG Bonus Tax Really a "Tax"?

From Barrons:

Richard Epstein of the University of Chicago Law School says that while the tax is more egregious than others, there's no precedent to point to that says the scheme is unconstitutional. But this assumes that what Congress has designed really is a tax, says Erik Jensen of Case Western Reserve University Law School.

"Yes, the taxing clause of the Constitution gives Congress the power 'to lay and collect taxes,' and ordinarily a court won't strike down a charge that Congress says is a tax," Jensen wrote in an e-mail in response to our query. "But that's a matter of deference, not principle. The proposals now before Congress aren't anything like business-as-usual taxation, where deference would be appropriate. A charge imposed at a confiscatory rate of 90% on only a few specified people and on only part of their income isn't what the Constitution means by 'tax.' "

Jensen adds: "It's obvious from the way members of Congress are talking that punishment, not revenue-raising, is involved here. Whatever label Congress uses, confiscating a well-defined category of property from a small group of people sounds a lot more like a taking than it does a tax."

I think that's right (and not just because Erik's a colleague). The key to any constitutional challenge (whether under the Bill of Attainder clause or some other provision) will be convincing a court that the AIG bonus tax is not actually a "tax." The problem is that courts are usually inclined to accept congressional characterizations of legislation — though perhaps this provision will be a stretch too far.

Meanwhile, Professor Larry Tribe is reportedly having second thoughts on the constitutionality of the provision.

UPDATE: Calvin Massey thinks there are real equal protection problems with the tax a la USDA v. Moreno.


[Richard Painter, guest-blogging, March 23, 2009 at 12:42pm] Trackbacks
Responses to (Some) Comments:

Here are my responses to some of the comments made thus far. If you believe I have not answered your question in the next 24 hours, please post it again or email me at

Richard Painter

First Amendment concerns with my proposal would be relevant for career government employees and indeed Hatch Act rules have been drafted to address concerns that courts have about excessively strict rules for career employees. I do not, however, intend my proposal to apply to career government employees or even to more junior (Schedule C) political appointees.

Political appointees, unlike career employees, serve at the pleasure of the President. If their conduct and speech, whether official capacity or personal capacity, displeases the President or the President’s senior staff, political appointees are likely to be fired (try for example engaging in Democratic party political activity while working as a political appointee for a Republican administration, or vice versa, and see what happens!).

The best way to implement the change I am suggesting would be for the President to voluntarily impose it. I circulated this proposal privately before the election and, for whatever reason, Senator McCain specifically said that if elected he would close down the Office of Political Affairs and send this work over to RNC where it belonged. The issue did not, however, get enough attention in the election and Senator Obama did not match this campaign promise of Senator McCain or even respond to it. I do not doubt, however, that President Obama could constitutionally require that his political appointees refrain from partisan political activity to the extent the President believes appropriate.

For Congress to impose such a rule would raise some free speech issues, although the Hatch Act restrictions on most political activity by national security and intelligence officials have thus far remained intact. If these rules are constitutional, I do not see how the constitutional analysis would be different for Treasury officials and others who hand out bailout and stimulus funds, or for any other officials whose government function could be easily corrupted by constant access to political operatives and campaign contributors.

Furthermore, at a minimum Congress should amend the Hatch Act to change the current rule which is more permissive for senior political appointees than for other government employees. The former can engage in political activity during normal working hours and on government property (including the White House). The latter cannot do so. If anything, it should be the other way around. At a minimum, the rule should be the same for everybody.

Finally, I am not concerned about government officials knocking on doors or standing on street corners handing out leaflets, or going to campaign rallies. The problem is that this is not what they do. My concern is fundraisers and similar events where senior Administration officials speak in their “personal capacity” about official business. The people who pay to attend these events get preferential access to Executive Branch officials to discuss official business.

Another consideration is how easy it should be for political operatives outside the government to get access to officials inside the government. There will undoubtedly be some contact, but how much is appropriate? One hypothetical in my book involves a state political party operative complaining at a purely political event to an OPA staff member that the local United States Attorney’s office is not diligent about prosecuting election fraud (read between the lines that what really worries the political party operative, a Democrat, is that not enough Republicans are being prosecuted for election fraud). If the allegation is true, the lax enforcement of election fraud laws is a matter of official business and official concern, but fact is that in my hypothetical the communication is made in a “personal capacity” political context. What then if the OPA official acts on this complaint in an official capacity or involves the Justice Department in taking official action? Assuming legal means are used to take official action on the matter, the Administration is within its rights and responsibilities in addressing the problem of election fraud. Nonetheless, the manner in which the matter originated – in a “personal capacity” political communication – would raise substantial questions of impropriety, even if there were in fact no impropriety. Perhaps this type of thing has never happened and would not happen in the future; but perhaps it could happen and a realist might even speculate that under current practice it is indeed likely to happen. Reduced political activity by White House staff and senior political appointees would make such a scenario less likely and would make public acceptance of official action more likely.

Finally, nowhere do I suggest that political considerations be removed from official decisions. I also do not propose to go so far as to prohibit contact between White House officials and political party operatives, who should be treated like any other outside group such as labor unions, the chamber of commerce, etc., and these groups frequently get access to the White House. I do suggest that White House officials and other senior political appointees should not be working for these outside political operatives – mostly at fundraisers – in their “spare time” while pretending that they are not doing so on behalf of the White House or the Administration.

As with many other problems in ethics, whether for government employees or private practice lawyers, these problems come up because somebody tries to wear two hats at the same time. Sometimes we have to regulate such conflicts of interest, but sometimes the best response is for the boss or the client – here the President – to simply say no.


Two Contrarian Posts on Right Coast: Two posts running contrary to bloggerian wisdom are up on the Right Coast. Tom Smith responds here to the pessimism of Victor David Hanson:
I don't agree that we are going to hell. I teach youngsters for a living and I am continually impressed by their resolve and courage. They are plenty smart but one thing I have learned I think is that character you can never have too much of, while intelligence you need enough of but after a certain amount it is almost irrelevant, if you are not an astrophysicist or something. Kids these days, from what I can see, are strong and brave. Look at them in Iraq, for heaven's sake. Compare our military now to the US Army in Vietnam. There are grave social problems, but I remember the seventies and early eighties. In many ways, the country's values are much healthier now.

I could be completely wrong, but Obama is beginning to look to me as a kind of Jimmy Carter. He is either going to change himself, or people are going to cast him aside. I don't think he has what it takes (knock on wood) to lead us off of cliff. I don't think enough people will follow him. In fact, I think a lot of moderates and independents may have learned or be about to learn a lesson.

I'm one of nature's pessimists. I see the glass as half full, with poisoned water. Even so, I really think our best days are ahead of us. The people who would like to stamp out or cabin inside of the state the best things about this country, have come along a few decades too late. I could be wrong, but I don't think so.
And today, Maimon Schwarzschild throws some cold water on all the linking to the Politico story noting how three New York Times columnists criticized the President in yesterday's Times:
In other words, how about war crimes trials for Bushitler.

And Frank Rich is indignant that Obama isn't even more demagogic about AIG, perhaps a la ACORN.

Tom Friedman, it's true, says one or two obvious but sensible things, as he does now and then - and my, how pleased with himself he always seems. But otherwise it's the usual shrill, robotic leftism at the Times. Obama needn't worry: and I strongly suspect he doesn't. Obama's a moderate, you see. Criticised from the left as well as the right. Yadda.
If you like the VC, I highly recommend The Right Coast, a group of University of San Diego law profs. All are excellent, but Tom Smith's writings on topics of all sorts is on a higher plane than what you will find most anywhere.

Cato Book Forum on Justice Kennedy Today: Today at noon, I will be speaking at a Cato book forum on a new book by political scientist Helen Knowles, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. Those who cannot attend in person can watch the event live on line here. Here is the Cato announcement:
Monday, March 23, 2009
12:00 PM (Luncheon to Follow)

Featuring author Helen J. Knowles, State University of New York, Oswego; With comments by Randy Barnett, Georgetown University Law Center; Moderated by Roger Pilon, Director, Cato Institute's Center for Constitutional Studies;

The Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001

Come back to this page to watch the event live.

Justice Anthony M. Kennedy sits at the center of the Roberts Court. Two terms ago he was in the majority in all 24 of the 5–4 decisions. During that term, in fact, he was in the majority in all but two of the Court's decisions, and his pivotal role on the Court continues. It is no stretch, therefore, to call today's Supreme Court the Kennedy Court. Yet only now do we have the first book-length study of Justice Kennedy and his constitutional jurisprudence. Author Helen Knowles examines how Kennedy's background as a law student and classroom teacher has influenced his judicial philosophy. The book begins by examining Kennedy's judicial thought in the context of libertarian thought. Knowles does not call the justice a libertarian. Instead, in a sympathetic but not uncritical analysis, she uses libertarian philosophy, focusing on privacy, race, and speech cases, to draw out Kennedy’s views about limited government and individual liberty. Please join us for a discussion of Justice Kennedy's "modest libertarianism," with comments by one of the nation's foremost constitutional scholars, Professor Randy Barnett.

Related Posts (on one page):

  1. Cato Book Forum Video Now Available:
  2. Cato Book Forum on Justice Kennedy Today:

Obama Snubs Sarkozy By Writing to Chirac.

According to the French newspaper, Le Figaro, President Barack Obama has written a letter to French former president Jacques Chirac using language more commonly used when writing to current heads of state (via Monsters and Critics):

Paris -US President Barack Obama has indirectly praised former French president Jacques Chirac's fierce opposition to the US-led invasion of Iraq, the online edition of the daily Le Figaro reported on Thursday.

In a letter described by Chirac as 'very nice,' Obama wrote, 'I am certain that we will be able to work together, in the coming four years, in a spirit of peace and friendship to build a safer world.'

The use of the word 'peace' was taken to be an indirect reference to Chirac's stance against the US intervention in Iraq, which Obama had also opposed as senator.

Of course, if Bush had done this, we would have weeks of jokes on TV about how he doesn’t know who the President of France is.

It has been reported that Nicolas Sarkozy has been trying to get an invitation to the White House, so Sarkozy might already be somewhat put off. Since I seem to recall that Obama has met Sarkozy, I doubt that Obama simply forgot who the President of France is, but it’s possible.

The likelier possibilities are that:

(1) Obama was trying to send some sort of insulting message to Sarkozy, or

(2) Obama was clueless about how a letter suggesting that he wanted to work with Chirac "in the coming four years" would be interpreted by Sarkozy or the French press, much as he was clueless about his snub of British PM Gordon Brown.

As a possible reason for writing Chirac, consider this Wikipedia entry on what Chirac has been doing since he left office:

After his presidency ended, Chirac became a lifetime member of the Constitutional Council of France. He sat for the first time in the Council on 15 November 2007, six months after leaving the French Presidency. Immediately after Sarkozy's victory, Chirac moved into a 180 square meters duplex on the Quai Voltaire in Paris lent to him by the family of former Lebanese Prime Minister Rafik Hariri. During the Didier Schuller affair, the latter accused Hariri of having participated to the illegal funding of the RPR's [Rally for the Republic’s] political campaigns, but the justice closed the case without further investigation. On 11 April 2008, Chirac's office announced that he had undergone successful surgery to fit a pacemaker. In January 2009 it was reported that Chirac had been hospitalized after being attacked by his pet Maltese poodle, who had been medicated with antidepressants.

Shortly after leaving office, he founded the Jacques Chirac Foundation for Sustainable Development and Cultural Dialogue.

If we could see the address on the letter to Chirac, it might be clear whether Obama or one of his staff was confused about the identity of the French President. My guess is that this was just a rookie mistake, i.e., bad diplomacy in wording a letter, not confusion about identities.

More at GatewayPundit.

UPDATE: More evidence that Obama is intentionally dealing with former heads of state.

2d UPDATE: As noted by the Christian Science Monitor and elsewhere, the context was the one I suspected. Obama was writing to Chirac as the head of his Foundation for Sustainable Development and Cultural Dialogue.

United States v. Megahed and Withdrawn Consent to Search a Computer Image: Some of the most interesting computer search and seizure questions involve consent searches. The Fourth Amendment allows suspects or third parties to consent to a search property over which they have common authority. With the right to consent comes a right to withdraw consent: If you let the cops look through your stuff, you also have a right to stop them from looking mid-way through their search.

  Computer searches create an added wrinkle, however: Computer searches are ordinarily conducted by first making a perfect copy (an "image") of the hard drive. The government then searches the copy rather than the original. It often happens that the suspect or a third party will initially consent, but that when they consult a lawyer, the lawyer tells them to withdraw their consent immediately. This creates a pretty tricky question: if a suspect or third party consents to a computer search, and the government then makes an image, can the suspect or third party withdraw consent and take away the government's authority to search through the image copy? Or is the image the government's property, such that it is too late for the suspect to withdraw consent to search it?

  This is a really fun question, and one that government forensic specialists are often curious about. It's also the topic of a note in my Computer Crime Law casebook. But it had never actually come up in a published decision until last week, when Judge Merryday in Tampa handed down United States v. Megahed, 2009 WL 722481 (M.D.Fla. March 18, 2009).

  The facts involve an explosives case about to go to trial in Tampa, Florida, involving Youseff Megahed, a college student. On August 6, 2007, the FBI came to the family residence of the suspect looking for bombs, bomb-making materials, and anything that could be used to manufacture or build a bomb. The suspect wasn't home, but the suspect's father, Samir, was present. FBI asked the father for consent to search the home. The father signed a consent form in English and Arabic allowing a complete search of the residence an a seizure of “any items which [FBI agents] determine may be related to their investigation.” The FBI took away a computer, and the next day asked the father to sign a computer search consent form, which he did.

  Two months later, however, the father, Samir Megahed, withdrew his consent. It is not clear when the image copy was made. However, the computer image wasn't actually searched until a year later, as far as we can tell: The key evidence in this case was discovered in October 2008, a year after consent was withdrawn. In this particular case, the defendant is seeking to suppress the evidence discovered (an Internet history file) on the ground that the image couldn't be searched after the consent was withdrawn.

   Judge Merryday concluded that the motion was moot for reasons unrelated to these questions, but then added that on the merits the argument lacked merit:
[T]he October, 2007, revocation of consent by the defendant and the defendant's parents does not require suppression of the internet history. After agents searched the Megahed residence, seized the computer, captured a mirror image copy of the hard drive, and returned the hard drive to Samir Megahed, the evidence was discovered in the course of an examination of the FBI mirror image copy. In October, 2008, neither the defendant nor Samir Megahed retained a reasonable expectation of privacy in the mirror image copy that the FBI had obtained already with Samir Megahed's consent and had begun already to search. The revocation did not operate retroactively to nullify this history. See United States v. Ponder, 444 F.2d 816, 818 (5th Cir.1971) (“[A] valid consent to a search ... carries with it the right to examine and photocopy.”); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977) (affirming an order that directed the return of original records and documents voluntarily provided to an IRS agent after withdrawal of consent but agreeing that the taxpayer's “withdrawal and reinvocation does not affect the validity of [the agent's] actions prior to the time he received notice that his right to retain Mason's papers was gone. The district court correctly refused to require the return of copies made prior to the demand by Mason's attorney.”) (emphasis added); United States v. Ward, 576 F.2d 243, 244-45 (9th Cir.1978) (adopting the reasoning of Mason as to the use of records following revocation but concluding that “any evidence gathered or copies made from the records [before revocation] should not be suppressed.”) (emphasis added).
  This is an interesting result, although unfortunately there isn't much analysis here. I also find it a little hard to know what to make of this case without knowing the language of the consent form, the timing of when the image was made, and whether the image was searched before the search that let to the evidence at issue here. If the image was made before the consent was withdrawn, and the form clearly stated that the image would be made and the government would have rights to search the copy, then I think this is quite plausible. On the other hand, if the image wasn't yet made, then I think this is wrong. If the image was made but the search form didn't state clearly that a copy would be made and searched, then I'm not sure what to think.

  These are really hard issues, I think. Do the rights to consent and withdraw consent carry over to the image, such that the image is treated just like the original? Or does consenting to the making of the image waive any rights in that image? What do you think?

[Richard Painter, guest-blogging, March 23, 2009 at 12:50am] Trackbacks
Reforming The White House Office of Political Affairs

My first post concerns appropriate boundaries of political activity by the White House staff and by senior political appointees in the Administration. Political campaigning by Administration officials is ostensibly conducted in a “personal capacity” without use of official title because such is what the Hatch Act requires. For all practical purposes, however, this activity is conducted on behalf of the President, and often because it was specifically requested by the White House Office of Political Affairs (OPA). This political activity creates conflicts of interest for government officials and gives campaign contributors an unwarranted access to key decision makers. I have proposed in my book (Chapter 10) that such political activity by senior Executive Branch officials be sharply curtailed.

Apparently, however, the President is sticking with the status quo. He has decided to retain the White House OPA. OPA was for much of the George W. Bush Administration run by Karl Rove. Under President Obama, OPA has been taken over by Patrick Gaspard, a union advisor from New York. This is the Office that has in the past encouraged political appointees across the Executive Branch to moonlight for the President’s political party by, for example, speaking at campaign fundraisers or at political events in a congressional candidate’s district.

The first problem with this political work is its legality. The Hatch Act prohibits government officials from engaging in political activity using official titles or at government expense. Most government officials may not participate in political activity while on government property or during working hours. An exception in the Hatch Act regulations, however, allows senior political appointees to do so provided they do not use their official titles or incur additional expense for the government.

This exception permits some people to do both official and political work in the same office, provided they purport to distinguish between the two. Numerous gadgets--BlackBerries, cell phones, computers — are thus provided by the DNC or RNC (depending upon which party controls the White House) to OPA staff and some other Administration officials. Calls coming from White House officials on DNC cell phones and emails sent on DNC BlackBerries are, legally, not coming from the White House at all. They are merely “personal capacity” communications by persons who happen to be White House staff.

These distinctions are more theoretical than real. When OPA staff members make phone calls or send email, everyone knows where they work. When they speak at campaign events, everyone knows who they are. The same is true when other White House staff members and political appointees from the agencies are recruited by OPA to work for political campaigns. Calling this partisan political activity “personal” rather than “official” is a legal fiction.

The second problem is conflict of commitment. There is no way of knowing how much time is spent on politics instead of official duties because time records for senior political employees are not required. Presumably, records of reimbursements they receive from campaigns for travel expenses are filed with the FEC, but this information is difficult for the public to obtain. Little is known, for example, about how many trips are taken by OPA staff and who pays for them.

The third and most serious problem is conflict of interest. Many contacts made in partisan politics are with fundraisers and donors. The Hatch Act allows government employees to speak at fundraisers provided they do not explicitly ask for money (another legal distinction with little grounding in reality). White House staff and other Administration officials are highly sought-after speakers because they fill the room with people who pay.

These people usually want something in return. Lobbyists are among the most frequent attendees (some fundraisers are hosted by lobbyists). Corporations and other organizations that want a share of government economic stimulus money or a government bailout package know they had better attend fundraisers. Government officials learn at these events what contributors want. The contributors also expect to get what they want and sometimes do.

Concurrent political and official roles thus put government officials in an untenable position. Critics often blame OPA staff members for the resulting problems and claim things would be better if another political party controlled the White House. These problems, however, are inevitable.

Retaining the White House OPA can work for the Obama Administration, but ethical quagmire will be inevitable unless the role of OPA changes. OPA should stick to providing the President with official capacity advice about the political strengths and weaknesses of the President’s policy proposals. OPA Staff, along with other White House staff should not personally participate in partisan politics. Hatch Act regulations already bar some Administration officials, for example those in national security related work, from most political activity. Similar restrictions should apply to political appointees in all or most other parts of the Administration – particularly anyone involved in handing out economic stimulus or corporate bailout money that will cost taxpayers trillions of dollars. The Administration should be served by officials with undivided loyalties to the government and the Country it serves.

Richard Painter


Sunday, March 22, 2009

More Torture Memos on the Way:

Newsweek reports that the Justice Department is preparing to declassify and release more internal memoranda on "enhanced interrogation" techniques.

Over objections from the U.S. intelligence community, the White House is moving to declassify—and publicly release—three internal memos that will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA. One senior Obama official, who like others interviewed for this story requested anonymity because of the issue's sensitivity, said the memos were "ugly" and could embarrass the CIA. Other officials predicted they would fuel demands for a "truth commission" on torture.

Public-Private Partnerships in Which Making Bad Deals Are Part of the Plan.

Public-Private business partnerships are usually a bad idea.

An unintended consequence of such partnerships is that most of the gains are privatized, while most of the losses are borne by the public. With the Treasury’s new plan, this bad result is INTENDED, not unintended.

If the Treasury plan works as it’s designed to work, the government will bear most of any losses and the private hedge funds will enjoy most of any gains. Indeed, that’s its goal, all in service of a larger goal: to get the riskier parts of the credit markets moving.

Tom Maguire’s has a wonderful post analyzing the returns to private investors under the new plans leaked this weekend (tip to Instapundit).

There is one thing that I’d add to Tom’s analysis: If the returns to investors really are 12-99% with the downside risk borne by the government, then once this becomes clear, the prices paid to purchase the troubled assets should rise to above the market rate, thus making the underlying deal an even worse one for the government and increasing the downside risk (it should also raise the interest paid to the government on the deal, but, as Tom notes, the interest expected to be charged will probably not come close to compensating the government for the downside risk).

Tyler Cowan’s analysis is here.

It seems unlikely that President Obama would stop Secretary Geithner from implementing the Treasury plan, since Obama's commitment to public-private partnerships appears to exceed even former Secretary Paulson's.

More on AIG Bonus Tax as Bill of Attainder:

The prevailing academic view seems to be that courts are unlikely to invalidate a confiscatory tax on bonuses received by executives at AIG and other TARP recipient companies. Paul Sracic at Youngstown State takes a different view.

Congress may have more of a problem with the Bill of Attainder provision than they are admitting. This is because the separation of powers principle that might normally argue for judicial deference may run in the other direction here.

Chief Justice Earl Warren wrote in US. v. Brown (1965) that the basic reason for a Bill of Attainder clause was to prevent “trial by legislature.” This is because “the legislative branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon specific persons. “

Congress can always levy a tax that seems punitive to those who have to shell out the money. Legislative motive is therefore crucial to both limiting and to giving teeth to Bill of Attainder analysis. Does anyone think that it would be difficult to prove in court that the overwhelming reason that this bill was passed was to confiscate the ill-gotten gains of those AIG employees who received the bonuses? It is money that is already in their pockets. In this sense then, confiscation of property is being used as a punishment. When Congress does this, it is a Bill of Attainder.

I am sympathetic to this view, but I still think courts will be reluctant to invalidate the tax. It may be generally understood that the tax is motivated by public outrage against the issuance of these bonuses, but it could still be "difficult to prove in court that the overwhelming reason that this bill was passed was to confiscate the ill-gotten gains of those AIG employees." Courts are rightfully reluctant to evaluate legislation on the basis of stray comments made by legislators, particularly if different legislators express different opinions. Key members of Congress have already begun to distance themselves from arguments that the tax is a punitive measure. Rep. Charles Rangel, for instance, argued on Fox News Sunday this morning that the tax is really about protecting taxpayers, and not about punishing AIG execs. Whether we believe him or not, such comments will make it difficult to prove that Congress acted with an illegitimate motive, particularly given the broad deference courts have shown Congress in this area. So while I am sympathetic to the view that the tax is, in fact, an unconstitutional Bill of Attainder, I remain skeptical that the federal courts would so hold.


Sunday Song Lyric: Oh that Britney Spears sure is clever. Her current single, "If U Seek Amy" isn't really about a woman named Amy -- or at least the chorus isn't.
Love me hate me
Say what you want about me
But all of the boys and all of the girls are beggin' to
If you seek Amy
Love me hate me
But can't you see what I see
All of the boys and all of the girls are beggin' to
If you seek Amy
Get it? The Parents Television Council did, and they are quite upset.
The PTC believes that the song, entitled “If You Seek Amy,” would violate the broadcast indecency law if aired between the hours of 6:00 a.m. and 10:00 p.m.

The song makes repeated use of the following line: “All of the boys and all of the girls are begging to if you seek Amy.”

“This may sound Yogi Berra-ish, but Britney’s song is a double-entendre with only one meaning. There is no misinterpreting the lyrics to this song; and it’s certainly not about a girl named Amy,” said PTC President Tim Winter.
Of course, as the OED's Jesse Sheidlower notes, Britney's little trick isn't so new. There's a long history of "If You See Kay" songs, going back to Memphis Slim's 1963 song (though, to be fair Britney's song does have a little twist, using "Amy" instead of "Kay"). This cute little trick also appears in James Joyce's Ulysses and was used by other literary giants, including William Shakespeare. So, PTC, lighten up! Britney's just showing off her literary chops.

Dahlia Lithwick Reviews Little Pink House - Jeff Benedict's book on Kelo v. City of New London:

In this New York Times article, prominent legal commentator Dahlia Lithwick reviewed journalist Jeff Benedict's recent book on the Kelo case, Little Pink House, which I discussed in detail in this post.

Lithwick chides Benedict for giving relatively short shrift to the legal issues in the case. As I pointed out in my own review, Benedict deliberately focused on the political and social background to the Kelo condemnations while leaving the technical legal issues to the army of scholars and pundits who had already written on them. Nonetheless, I also noted that Benedict did make a few errors in his discussion of legal points, for instance in suggesting that Kelo was a major departure from previous Supreme Court takings decisions.

Unfortunately, Lithwick fails to note any of Benedict's genuine errors. Instead, she incorrectly portrays Benedict as ignoring the argument that the majority justices were impartially applying the law, despite its possible unfair results - a claim that Benedict actually does discuss several times in the book. Worse, she makes several egregious legal errors of her own. For example, she writes that the Kelo decision was about "dispassionately applying state laws," whereas in reality the case addressed the Public Use Clause of the Fifth Amendment of the federal Constitution. As Lithwick surely realizes, the federal Supreme Court lacks jurisdiction over most pure state law issues.

Several other errors in Lithwick's review are catalogued in this post by eminent domain scholar Gideon Kanner.

UPDATE: Various commenters object to my description of Lithwick as a "prominent legal commentator," claiming that her work is too flawed to merit such an accolade. However, she undoubtedly is prominent in the sense of being well-known and widely read. The fact that Lithwick publishes in Slate and the New York Times, among other major outlets, is an indication of her prominence. Whether she deserves that prominence is a separate question.

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: