Saturday, April 18, 2009

A Blast From the Past on Fascism--Part 3: The 2005 NY Times Ad.

Remember this New York Times ad from December 2005, comparing Bush to Hitler and accusing Bush of remaking "society very quickly . . . in a fascist way":

YOUR GOVERNMENT, on the basis of outrageous lies, is waging a murderous and utterly illegitimate war in Iraq, with other countries in their sights.

YOUR GOVERNMENT is openly torturing people, and justifying it.

YOUR GOVERNMENT puts people in jail on the merest suspicion, refusing them lawyers, and either holding them indefinitely or deporting them in the dead of night.

YOUR GOVERNMENT is moving each day closer to a theocracy, where a narrow and hateful brand of Christian fundamentalism will rule.

YOUR GOVERNMENT suppresses the science that doesn't fit its religious, political and economic agenda, forcing present and future generations to pay a terrible price.

YOUR GOVERNMENT is moving to deny women here, and all over the world, the right to birth control and abortion.

YOUR GOVERNMENT enforces a culture of greed, bigotry, intolerance and ignorance.

People look at all this and think of Hitler —- and they are right to do so. The Bush regime is setting out to radically remake society very quickly, in a fascist way, and for generations to come. We must act now; the future is in the balance.

Note the combination of statements that evoke NAZI policies (wars of aggression, torture, jailing people without trial) with some statements that are strongly contrary to NAZI policies (promoting religion, promoting a culture of greed) and with still more statements that are at least as much opposed to NAZIism as in favor of it (opposing abortion, opposing science).

To understand the modern analogues of fascist policies, people need to study fascist literature more carefully.

Among the signatories to the 2005 ad were:

  • James Abourezk
  • Tom Ammiano, SF Board of Supervisors
  • Edward Asner
  • William Ayers, professor and author
  • Russell Banks, writer
  • Ed Begley, Jr.
  • Harry Belafonte
  • Dave Berenson, US Green Party, Cleveland
  • William Blum
  • Gabriel Byrne
  • Campus Anti-War Network (CAN)
  • Tim Carpenter, dir., Progressive Democrats of America
  • Chicago ADAPT
  • Margaret Cho
  • Ward Churchill
  • David Cobb, 2004 Green Party Presidential Candidate
  • US Rep John Conyers Jr.,
  • Barry Crimmins, writer/correspondent, Air America Radio
  • Code Pink: Women for Peace
  • Culture Clash

  • DC Anti-War Network
  • Carl Dix, Revolutionary Communist Party
  • Tom Duane, NY State Senator
  • Michael Eric Dyson, author, Is Bill Cosby Right?
  • Steve Earle
  • Edwin Ellis, president, Veterans for Peace, LA*
  • Daniel Ellsberg, author of The Pentagon Papers
  • Christian Ettinger, exec. producer, The Weather Underground
  • Jodie Evans, Code Pink
  • Jane Fonda
  • Global Justice & Peace Ministries, Riverside Church, NYC
  • Senator Mike Gravel
  • Andy Griggs, Exec. Board, United Teachers of LA*
  • Paul Haggis, film director/producer, Crash
  • Impeach Bush Coalition
  • Islamic Circle of North America (ICNA Relief USA)
  • Islamic Association of America
  • Abdeen Jabara, past pres., American-Arab Anti-Discrimination Committee*
  • Rev. Jesse L. Jackson
  • Bianca Jagger, actress & activist
  • Mumia Abu-Jamal, political prisoner, journalist
  • Rickie Lee Jones, musician
  • Casey Kasem
  • Robin D.G. Kelley, Columbia University
  • M. Ali Khan, American Muslim Council
  • Margot Kidder
  • C. Clark Kissinger
  • Ron Kovic, author, Vietnam Veteran
  • Jonathan Kozol
  • Ray Laforest, organizer, DC 1707, AFSCME; member Pacifica National Board
  • Rabbi Michael Lerner, editor, Tikkun magazine
  • Bruce Lincoln, prof., History of Religions, Univ. of Chicago
  • Gregory Maguire, author, Wicked
  • Lucinda Marshall, founder, Feminist Peace Network*
  • Bill Martin, philosopher
  • US Rep. Cynthia McKinney
  • Bill Mitchell, co-founder, Gold Star Families for Peace*
  • Viggo Mortensen
  • National Lawyers Guild
  • Armando Navarro, chair, Ethnic Studies, UC Riverside
  • Northwestern College Feminists
  • Not in Our Name
  • Bertell Ollman, prof., Dept. of Politics, NYU
  • R. Tomás Olmos, Pres., Mexican-Amer. Bar Found., LA County
  • Jose Padilla, exec. dir., CA Rural Legal Assistance*
  • Grace Paley, writer
  • Patrick Henry Democratic Club
  • Sean Penn
  • Rosalind Petchesky, prof., Hunter College & Grad Center, CUNY
  • Jeremy Pikser, screenwriter, Bulworth
  • Harold Pinter, playwright, 2005 Nobel Prize winner
  • Frances Fox Piven
  • Progressive Democrats of America
  • Michael Ratner, Center for Constitutional Rights*
  • Scott Ritter, former UN weapons inspector
  • US Rep. Bobby Rush
  • San Francisco Bayview Newspaper
  • Susan Sarandon
  • John Sayles, filmmaker
  • Richard Serra
  • Cindy Sheehan
  • Martin Sheen
  • Gloria Steinem
  • Lynne Stewart, lawyer
  • Studs Terkel
  • Gore Vidal
  • Kurt Vonnegut
  • Alice Walker
  • US Rep. Maxine Waters
  • Wavy Gravy
  • Leonard Weinglass, lawyer
  • Cornel West, Princeton University
  • Standish E. Willis, Nat. Conference of Black Lawyers
  • Ann Wright, former US diplomat, resigned in protest of Iraq war
  • Peter Yarrow
  • Leland Y. Yee, Speaker pro Tem, CA State Assembly
  • Juanita Young, leader, October 22nd Coalition*
  • David Zeiger, filmmaker, Sir, No Sir!
  • Howard Zinn, historian, A Peoples' History of the United States

A Blast From the Past on Fascism--Part 2: Nazification of Bush

Here is a John Leo column from late 2003 on the Nazification of Bush. Unfortunately, it lumps together the criticisms of serious people and organizations with those of isolated internet commenters:

The hard left decided long ago that George W. Bush is Hitler. In maddened corners of the Internet and at swastika-choked antiwar marches, Bush is shown with a Nazi uniform or a Hitler mustache. But does everyone on the far left believe this? Not at all. Some think that Dick Cheney is the real Hitler (he commands America’s “storm-trooper legions,” said former right-wing crackpot and current left-wing crackpot Lyndon LaRouche). Others think Don Rumsfeld is Hitler (both men favored mountain­top retreats, the Action Coalition of Taos points out). These comparisons are still being argued. Air Force veteran Douglas Herman, writing an op-ed piece in Florida, says Rumsfeld is more like Goering, since both men were fighter pilots, while LaRouche decided that Cheney isn’t just Hitler — he’s Lady Macbeth as well.

Many on the left believe that either Ari Fleischer or Karl Rove is Nazi propagandist Joseph Goebbels. Or maybe Richard Perle is related to Goebbels. The September issue of Vanity Fair suggested that Perle could be Goebbels’s twin (side by side photos, headlined “Separated at birth?”).

Another vexing question about Rove: Is he Goebbels or Josef Mengele? Goebbels is the top choice among antiwar commentators, but a writer to the MetaFilter site said: “Karl Rove made up stories about John McCain, just as Josef Mengele conducted medical experiments on children in Auschwitz.”

One Internet site referred to Tom Ridge as Heinrich Himmler; another calls him head of “Homeland Security, the new Gestapo.” Colin Powell is Nazi Foreign Minister Joachim von Ribbentrop, according to a posting on the Democratic Underground site. And Frank Rich of the New York Times managed to work a famous Nazi filmmaker into the mix. He wrote that the recent Showtime docudrama, DC 9/11: Time of Crisis, was so pro-Bush that it is “best viewed as a fitting memorial to Leni Riefenstahl.”

The common charge that Bush is Mussolini is controversial — many leftists insist that the Mussolini role is reserved for Tony Blair, the junior partner of Bush’s Hitler. . . .

Paul Wolfowitz is a challenge to lefty analysts, some of whom think his intellectual background is fascist (Jeffrey Steinberg in Executive Intelligence Review), while others believe he has Bolshevik roots (he is Trotsky’s ghost, according to Canadian journalist Jeet Heer).

Anyone who calls the Bush people fascists will get no argument from Princeton Prof. Sheldon Wolin, who says, “We are facing forms of domination that exceed the old vocabulary.” So if you feel like calling somebody a fascist, go right ahead. Historian Eric Foner of Columbia compared Bush to the Japanese warlords of World War II who launched a pre-emptive war at Pearl Harbor. Since other name-callers on the left are so Nazi-minded, this qualifies as a fresh idea.

By last fall, most of the outstanding villains of history had been pressed into service as forerunners of George Bush. Napoleon is a heavy favorite. . . .

Bush is Dr. Frankenstein, according to the cartoon “Bushenstein” featured on the Democratic National Committee Web site. Anti-Bush columnist Paul Krugman apparently disagrees. The cover on the British edition of his current book of columns shows Bush as Frankenstein’s monster, not as Frankenstein himself. The frontier for Bush insults keeps shifting. One day the president is Attila the Hun, the next day he is Ted Bundy. A posting on The Unknown (an apparently unhinged news site) said that Bush is a charming lunatic, just like Hitler, Ted Bundy, Mussolini, and Hannibal Lecter. One lefty said Bush is Caligula, while another insists he is the new Nero (“Nero burned Rome, Hitler burned the Reichstag, Bush burned the World Trade Center”). Don’t you love the way these people argue?

A Blast From the Past on Fascism--Part 1: Sheldon Wolin.

With all the recent talk about fascism, I thought I'd reprise this July 2003 Newsday essay by Professor Sheldon Wolin of Princeton:

A Kind of Fascism Is Replacing Our Democracy

Sept. 11, 2001, hastened a significant shift in our nation's self-understanding. It became commonplace to refer to an "American empire" and to the United States as "the world's only superpower."

Instead of those formulations, try to conceive of ones like "superpower democracy" or "imperial democracy," and they seem not only contradictory but opposed to basic assumptions that Americans hold about their political system and their place within it. Supposedly ours is a government of constitutionally limited powers in which equal citizens can take part in power. But one can no more assume that a superpower welcomes legal limits than believe that an empire finds democratic participation congenial. . . .

Like previous forms of totalitarianism, the Bush administration boasts a reckless unilateralism that believes the United States can demand unquestioning support, on terms it dictates; ignores treaties and violates international law at will; invades other countries without provocation; and incarcerates persons indefinitely without charging them with a crime or allowing access to counsel.

The drive toward total power can take different forms, as Mussolini's Italy, Hitler's Germany and Stalin's Soviet Union suggest.

The American system is evolving its own form: "inverted totalitarianism." This has no official doctrine of racism or extermination camps but, as described above, it displays similar contempt for restraints.

It also has an upside-down character. For instance, the Nazis focused upon mobilizing and unifying the society, maintaining a continuous state of war preparations and demanding enthusiastic participation from the populace. In contrast, inverted totalitarianism exploits political apathy and encourages divisiveness. The turnout for a Nazi plebiscite was typically 90 percent or higher; in a good election year in the United States, participation is about 50 percent.

Another example: The Nazis abolished the parliamentary system, instituted single-party rule and controlled all forms of public communication. It is possible, however, to reach a similar result without seeming to suppress. An elected legislature is retained but a system of corruption (lobbyists, campaign contributions, payoffs to powerful interests) short-circuits the connection between voters and their representatives. The system responds primarily to corporate interests; voters become cynical, resigned; and opposition seems futile.

While Nazi control of the media meant that only the "official story" was communicated, that result is approximated by encouraging concentrated ownership of the media and thereby narrowing the range of permissible opinions.

This can be augmented by having "homeland security" envelop the entire nation with a maze of restrictions and by instilling fear among the general population by periodic alerts raised against a background of economic uncertainty, unemployment, downsizing and cutbacks in basic services.

Further, instead of outlawing all but one party, transform the two-party system. Have one, the Republican, radically change its identity: . . .

From one that maintains space between business and government to one that merges governmental and corporate power and exploits the power-potential of scientific advances and technological innovation. (This would differ from the Nazi warfare organization, which subordinated "big business" to party leadership.) . . .

In institutionalizing the "war on terrorism" the Bush administration acquired a rationale for expanding its powers and furthering its domestic agenda. While the nation's resources are directed toward endless war, the White House promoted tax cuts in the midst of recession, leaving scant resources available for domestic programs. The effect is to render the citizenry more dependent on government, and to empty the cash-box in case a reformist administration comes to power.

Americans are now facing a grim situation with no easy solution.

The Sound of Music in Central Station Antwerp (Belgium)

For background on this video, click "show"

Koyaanisqatsi: The whole film, on YouTube. Cool. For background about the film, see here.

Minicars Offer Minimum Safety:

Some believe that smaller, more fuel-efficient vehicles are a key component of any sensible climate policy. But smaller cars, all else equal, tend to be less safe cars. Indeed, a recent report on much ballyhooed "minicars" finds that they are less crashworthy than normal sized vehicles.

The Insurance Institute for Highway Safety (IIHS) reported that in a series of test crashes between minicars and midsize models, minis such as the Smart car provided significantly less protection for their passengers.

The tests did not involve the much ballyhooed mismatches between subcompacts and Hummers, but measured the effect of relatively modest differences in size and weight. Even though the Smart car and other minis such as the Honda Fit and the Toyota Yaris have fared relatively well in single-car crash tests, they performed poorly in these two-car frontal offset collisions. In the words of IIHS president Adrian Lund, "though much safer than they were a few years ago, minicars as a group do a comparatively poor job of protecting people in crashes, simply because they're smaller and lighter."

That difference is reflected in the real world. The death rate in minis in multi-vehicle crashes is almost twice as high as that of large cars. And in single-vehicle crashes, where there's no oversized second vehicle to blame, the difference is even greater: Passengers in minis suffered three times as many deaths as in large cars.

Just as alternative energy sources are not free of environmental impacts, more fuel efficient vehicles have their downsides as well.


EPA Issues Endangerment and Contribution Findings:

Yesterday, as expected, the U.S. Environmental Protection Agency issued a proposed finding that emissions of six greenhouse gases, including carbon dioxide, pose a threat to public health and welfare due to their contribution to global warming. The EPA further found that the emission of such gases from motor vehicles contribute to dangerous concentrations in the atmosphere. The EPA announcement is here.

The proposed findings will now go through a 60-day public comment period. Shortly thereafter, the findings will be finalized. Industry and anti-regulatory groups will almost certainly challenge the findings in court, and their legal challenges will almost certainly fail. Even if one doubts the accumulated scientific evidence that anthropogenic emissions of greenhouse gases contribute to climate change and that climate change is a serious environmental concern, the standard of review is such that the EPA will have no difficulty defending its rule. Federal courts are extremely deferential to agency assessments of the relevant scientific evidence when reviewing such determinations. Moreover, under the Clean Air Act, the EPA Administrator need only "reasonably . . . anticipate" in her own "judgment" that GHG emissions threaten public health and welfare in order to make the findings, and there is ample evidence upon which the EPA Administrator could conclude that climate change is a serious threat. This is a long way of saying that even if climate skeptics are correct, the EPA has ample legal authority to make the endangerment findings.

Once the findings are finalized, the EPA will then be required to develop regulatory standards for new motor vehicles under Section 202 of the Act. As a practical matter, the EPA will also have to prepare to regulate greenhouse gas emissions under other portions of the act, as the relevant endangerment findings necessary to trigger such regulation are effectively identical to that which triggers motor vehicle emission regulation under Section 202. Even if the EPA sought to resist such regulation, it would be relatively easy to force the EPA's hand through additional citizen suits, much like the suits that set the EPA on this course in the first place.

Now that the EPA is on course to set greenhouse gas emission standards for new motor vehicles, it will be interesting to see how the Agency handles California's request for a Clean Air Act waiver for its own state-level vehicle emission standards. One of California's arguments was that it was particularly concerned about (and threatened by) climate change, and thus wanted to adopt its own regulations. But if the EPA is going to set national greenhouse gas emission standards, it is not clear why California should be able to have standards of its own. The automakers, for their part, will certainly argue that a single federal standard is more efficient and will impose fewer costs on consumers. Furthermore, given the global nature of climate change, the argument for allowing an individual state to go its own way is much weaker than where environmental concerns are more localized. And, if the new federal standard ends up being as stringent as those developed by California, the waiver issue would be moot.

Regulating greenhouse gases under the Clean Air Act will not be a particularly cost-effective way to reduce the nation's greenhouse gas emissions. The EPA and White House understand this, but they also recognize that, under Massachusetts v. EPA, the agency does not have much choice. Moreover, the threat of Clean Air Act regulations on greenhouse gases will create significant pressure upon Congress to replace such regulation with some alternative, such as the cap-and-trade program. I suspect this is one reason the Administration has not complained too much about Congress refusal to embrace cap-and-trade in the budget. It's okay to set climate policy aside now, they could reckon, as there will be significantly more political pressure to act on the issue later. Perhaps by then there will also be greater political willingness to consider alternatives to cap-and-trade.


Torture Memos Could Spur More Revelations:

The NYT reports:

the new revelations are fueling calls by lawmakers for an extensive inquiry into controversial Bush administration programs, and Mr. Obama now faces a challenge making good on his promise to protect from legal jeopardy those intelligence operatives who acted within Justice Department interrogation guidelines.

Some members of Congress and human rights lawyers are likely to press for new disclosures about the period of several months in 2002 when C.I.A. interrogators began interrogating Abu Zubaydah, a Qaeda operative captured in March of that year, before the Justice Department had officially endorsed the interrogation program. . . .

he American Civil Liberties Union, whose lawsuit forced the release of the Justice Department memos on Thursday, plans to press the Justice Department to release other classified documents from the Bush era, including a 2004 C.I.A. inspector general’s report that gives details about C.I.A. officers who exceeded Justice Department interrogation guidelines.

“These are the first dominoes,” said Jameel Jaffer, an A.C.L.U. lawyer. “It will be difficult for the new administration to now argue that other documents can be lawfully withheld.”

Relatedly, former CIA director Michael Hayden and former Attorney General Michael Mukasey criticized the memo release in this WSJ op-ed. The NYT's "Room for Debate" blog has more here.

UPDATE: Kevin Jon Heller suggests that CIA interrogators did not rely upon the OLC memos in good faith, as the CIA utilized techniques that were notably harsher than those described in the memos.


The Non-Prosecution of Bush Administration Officials—

Why doesn’t the Obama administration prosecute CIA officials who violated laws against torture? Could it really be indifferent to its obligation to prosecute under international law? And why have the prospects of a “tap on the shoulder” receded in Spain? I answered these questions in the course of predicting these developments, in earlier posts, here, here, and here.


Justice Stevens Rules for Edward de Vere:

The WSJ reports Justice John Paul Stevens believes that some/all of the work attributed to William Shakespeare were actually written by Edward de Vere, the 17th Earl of Oxford.

Justice Stevens, who dropped out of graduate study in English to join the Navy in 1941, is an Oxfordian -- that is, he believes the works ascribed to William Shakespeare actually were written by the 17th earl of Oxford, Edward de Vere. Several justices across the court's ideological spectrum say he may be right.

This puts much of the court squarely outside mainstream academic opinion, which equates denial of Shakespeare's authorship with the Flat Earth Society.

"Oh my," said Coppelia Kahn, president of the Shakespeare Association of America and professor of English at Brown University, when informed of Justice Stevens's cause. "Nobody gives any credence to these arguments," she says. . . .

Not all members of the court are persuaded. "To the extent I've dipped in, I'm not impressed with the Oxfordian theory," says Justice Anthony Kennedy. The spread of Oxfordianism on the court "shows Justice Stevens's power and influence," Justice Kennedy says. Of the nine active justices, only Stephen Breyer joins Justice Kennedy in sticking up for Will. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito declined to comment.

Justice Sandra Day O'Connor, who retired in 2006, cast the court's deciding vote many times. On Shakespeare, she says, "I'm not going to jump into this and be decisive."

According to Justice Stevens, "Sandra is persuaded that it definitely was not Shakespeare" and "it's more likely de Vere than any other candidate." Pressed, Justice O'Connor says, "It might well have been someone other than our Stratford man."


Obama Administration Now has More Czars than the Romanov Dynasty:

Over some 300 years, Russia was ruled by a total of 18 czars of the Romanov dynasty. However, as David Rothkopf of Foreign Policy points out, the Obama administration has now appointed more czars than that in just three months:

It has finally happened. With yesterday's naming of Border Czar Alan Bersin, the Obama administration has by any reasonable reckoning passed the Romanov Dynasty in the production of czars. The Romanovs ruled Russia from 1613 with the ascension of Michael I through the abdication of Czar Nicholas II in 1917. During that time, they produced 18 czars. While it is harder to exactly count the number of Obama administration czars, with yesterday's appointment it seems fair to say it is now certainly in excess of 18.

In addition to Bersin, we have energy czar Carol Browner, urban czar Adolfo Carrion, Jr., infotech czar Vivek Kundra, faith-based czar Joshua DuBois, health reform czar Nancy-Ann DeParle, new TARP czar Herb Allison, stimulus accountability czar Earl Devaney, non-proliferation czar Gary Samore, terrorism czar John Brennan, regulatory czar Cass Sunstein, drug czar Gil Kerlikowske, and Guantanamo closure czar Daniel Fried. We also have a host of special envoys that fall into the czar category including AfPak special envoy Richard Holbrooke, Mideast peace envoy George Mitchell, special advisor for the Persian Gulf and Southwest Asia Dennis Ross, Sudan special envoy J. Scott Gration and climate special envoy Todd Stern. That's 18.

This is a very conservative estimate, however. I will allow you to pick whom you would like out of the remaining candidates. For example you could count de facto car czar Steve Rattner even though the administration went out of its way to say they weren't going to have a car czar... before he ultimately emerged as the car czar . . .

But you certainly might want to count people deemed by the media to be the "cyber security czar" or the "AIDs czar" or the "green jobs czar" even if there are reasons to quibble about the designation of one or two of them.

Government by czar didn't work especially well in Russia. Hopefully, it won't be quite so bad in this country. And, yes, of course I understand that Obama's czars unlike the Romanovs are ultimately accountable to democratically elected officials. I also don't expect Obama's czars to be organizing pogroms or exiling dissidents to Siberia anytime soon. On the other hand, democratic accountability for America's czars is increasingly tenuous in light of the fact that there are too many of them for most voters to even keep straight, much less understand and evaluate their performance in any depth. Here, as elsewhere, the rapidly growing size and complexity of government makes difficult for voters to monitor those who are supposed to be serving the public . Maybe Obama's army of czars will do a good job anyway. A few of the Romanovs did. But for every "Czar-Liberator," like Alexander II (who free Russia's millions of serfs), there were a lot more oppressors and incompetents.

For what it's worth, I also recognize that it was the Republican Reagan administration that appointed the first American "czar" when they named a "drug czar" in 1982. Reagan was wrong to do so. That, however, in no way justifies the Obama Administration's massive expansion of this dubious practice.

UPDATE: Some commenters seem to be missing the point of the post; it's possible I wasn't sufficiently clear. So let me reiterate: No, I am not saying that Obama's czars are brutal oppressors like most of the Romanov czars were. I thought that was clear in the original post, where I said that "I also don't expect Obama's czars to be organizing pogroms or exiling dissidents to Siberia anytime soon." But let me be even more precise about it here to eliminate any remaining confusion. Nor am I saying that Cass Sunstein is somehow closely analogous to Nicholas II. I am, however, saying that the proliferation of czars makes an already excessively large and complex government even more difficult for rationally ignorant voters to monitor. And I doubt that there is any gain in efficiency to offset this harmful effect.


Friday, April 17, 2009

The World Without A Constitution:

Featuring a (funny) joke about the most obscure of the rights protected by the Bill of Rights.


Bloggers on politics of Gay Marriage and Illegal Aliens:

This week's National Journal poll of political bloggers asked: "Which statement comes closest to your political views on gay marriage?" On the Left, 89% said "My party should support it." On Right, there was a fairly close split between support, oppose, and "My party should avoid the issue," with the latter having a plurality.

It's not really possible for a party to "avoid" such a prominent issue, but I voted with the plurality anyway, since it comes closest to my view that both parties should not make support or opposition into a key issue of party loyalty. A "free vote," in parliamentary terms. There are good arguments on both sides of the issue.

I wrote: "The long-term trend is clearly in favor. Fair-minded supporters should ensure that gay marriage laws include strong protections for the rights of people who do not believe in gay marriage -- such as merchants or professionals who do not want to provide services to gay weddings because it would violate their conscience. Likewise, the U.S. should avoid the path of Europe and Canada, where speech critical of gay marriage can be prosecuted as illegal 'hate speech.'"

The second question was "Is it politically smart for President Obama to tackle immigration reform this year?" Seventy percent of the Left and 35% of the Right thought it was. I among those who voted Yes. I thought Micky Kaus's analysis was persausive, and wrote: "Simply by raising the issue, even if he doesn't get a bill passed, he sends a signal to aliens not to self-deport, and he encourages more illegal immigation, as persons contemplating immigrating illegally rush to get into the U.S. in time to get some form of amnesty. The result helps Democrats in the redistricting which will follow the 2010 Census."


David Brooks on Israeli Culture:


Israel is a country held together by argument. Public culture is one long cacophony of criticism. The politicians go at each other with a fury we can't even fathom in the U.S. At news conferences, Israeli journalists ridicule and abuse their national leaders. Subordinates in companies feel free to correct their superiors. People who move here from Britain or the States talk about going through a period of adjustment as they learn to toughen up and talk back.

Ethan Bronner, the Times' Jerusalem bureau chief, notes that Israelis don’t observe the distinction between the public and private realms. They treat strangers as if they were their brothers-in-law and feel perfectly comfortable giving them advice on how to live.

One Israeli acquaintance recounts the time he was depositing money into his savings account and everybody else behind him in line got into an argument about whether he should really be putting his money somewhere else. Another friend tells of the time he called directory assistance to get a phone number for a restaurant. The operator responded, "You don't want to eat there," and proceeded to give him the numbers of some other restaurants she thought were better.

I'll add two anecdotes. When I was in Tel Aviv in December, it was 70 degrees and sunny during the day. Nevertheless, most Israeli children were bundled up in winter parkas. Needless to say, my kids were wearing spring or summer clothes. You probably have guessed the punchline: complete strangers kept haranguing me about how it's cold out, and my children need to be wearing coats.

Also, a Jewish colleague of mine was in Israel for a wedding. As part of his security check at the airport upon his departure, the security official asked him if he was Jewish. He said yes. He was then asked if he had a bar mitzvah (which is usually the precursor to asking you which part of the Torah you read from, or where your bar mitzvah was held, or what synagogue your family belonged to). He replied, "no". The security official responded, "well, you really should consider it."

And I'll also second Brooks on this: "As an American Jew, I was taught to go all gooey-eyed at the thought of Israel, but I have to confess, I find the place by turns exhausting, admirable, annoying, impressive and foreign." Indeed, I find it very foreign, even though I speak Hebrew well enough to carry on a conversation, have an Israeli wife, and went to Zionistic Jewish schools where many of my teachers were Israeli.

The foreigness of Israel isn't that surprising, in context, beyond the most obvious points mentioned by Brooks. While the vast majority of American Jews are descended from the great wave of Eastern European immigration from 1880-1920, around half of all Israeli are of Middle Eastern or North African ancestry. Israel has a much higher percentage of Holocaust survivors and their descendants than the United States, as well as a much higher percentage of immigrants from the former Soviet Union. Jews are a majority, not a minority. (Almost) everyone does military service, including extreme leftists. Reform and Conservative Judaism, which dominate American Jewish life, have made little impression on Israel. Non-Orthodox Jews in Israel rarely attend synagogue, even on High Holidays, and, for obvious reasons, there is no such thing as a Jewish community center, or Hebrew School, or Jewish Summer camp, or other markers of the American Jewish experience. Until 25 or so years ago, Israelis lived in the kind of statist environment (where it took seven years to get a phone from the state-owned telephone company) that Americans would find absolutely unacceptable. And so on.


Minors with Stun Guns and Sprays, Oh My!

(Again, for more details, please read the article.)

All the general no-stun-gun jurisdictions, plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably Oakland and San Francisco, ban under-18-year-olds from possessing and carrying stun guns. Illinois and Maryland ban them from possessing and carrying irritant sprays. New Jersey, New York, Annapolis, Aurora (Illinois), Baltimore, and Washington, D.C. ban them from possessing and carrying either stun guns or irritant sprays, and of course guns, thus leaving under-18-year-olds entirely disarmed.

Few people would give a stun gun or irritant spray to a small child: They would rightly worry that the child will use the device irresponsibly, which likely won’t lead to death but would lead to severe and unnecessary pain, for the child himself or a playmate. They would rightly suspect that the child will be unlikely to know when he needs to use the device defensively, and unlikely to use it effectively when he does realize the need. And they would rightly suspect, especially for young enough children, that the child’s risk of being the target of violent crime is much less than an adult’s risk.

Yet it does not follow that older minors, such as 16-year-olds, should be denied such defensive tools as well. Girls age 15 to 17 are three times more likely to be victims of rape or sexual assault than women 18 and over. Older teenagers are often victims of other crimes as well. And older teenagers are likely about as able as adults to effectively use a stun gun, and to know when the need for self-defense arises. California and Florida law, incidentally, allows minors 16 and over to possess stun guns, so long as they have a parent’s consent; many other states have no prohibitions at all on minors’ possessing stun guns.

Older teenagers are likely to be less mature than adults, and might thus be tempted to misuse stun guns and irritant sprays, for instance for juvenile pranks or for revenge. But we do have a benchmark for thinking about when teenagers should be treated as mature enough to possess such nonlethal devices: Throughout the U.S., teenagers 16 and above are routinely given access to deadly devices, despite the risk that they will misuse those devices, and despite the temptation that those devices offer for such misuse.

Those devices, of course, are cars. Car accidents involving 16- and 17-year-old drivers kill over 1500 Americans each year. These older minors are tempted to drive cars too fast, or even deliberately race them. Some such minors use their cars to further other crimes, for instance to get to and away from a robbery, or to more effectively deal drugs. (Many crimes become much harder to commit without access to a car.) Yet despite that, we are willing to run the risk, even the certainty, of death and crime to allow 16- and 17-year-olds to drive.

Minors are allowed to drive because the aggregate benefits are seen as more important than the injuries and deaths that minors’ driving causes. When minors may drive, they can much more easily hold jobs. Letting minors drive is more convenient for their parents, who no longer have to drive their older children to school or to meet friends. Letting minors drive gives the older minors more freedom to do things that they enjoy. And driving sometimes even makes minors safer from crime, for instance if the minor can drive to a nighttime job instead of walking down a dark street to and from a bus stop.

But there are also benefits to letting older minors have nonlethal defensive weapons. When minors can effectively defend themselves, they can much more easily have certain jobs, because they can be more secure when going to and from work. Letting minors have nonlethal weapons gives them more freedom to do things that they enjoy, and lets them enjoy those things more because they worry less about being attacked. And letting minors have nonlethal weapons makes them safer from crime.

And it does all this without being likely to cost 1500 lives, as driving by 16- and 17-year-olds does. At most, it might lead to some extra crime by immature older minors, something that is largely deterrable by criminal punishment for misuse of the weapons -- more so than as to cars, since most injuries involving cars are accidental and thus harder to deter, while most misuses of nonlethal weapons would likely be deliberate.

Consider also our attitudes to martial arts classes, or for that matter self-defense fighting classes (such as Krav Maga). Knowing how to fight is useful for self-defense, but, as with a nonlethal weapon, it can also be used in crime -- whether robbery, bullying, revenge, an attack on a romantic rival, or many other things that an immature 16-year-old might want to do. While manual attacks only very rarely kill, the same is true for stun gun or irritant spray attacks. And manual attacks can inflict both serious pain (though probably less than with stun guns) and lasting injury (probably more likely than with stun guns or irritant sprays).

Yet our reaction to martial arts classes or self-defense fighting class¬es is not “save them for 18-year-olds, who are mature enough to use their training wisely.” Rather, we applaud minors’ taking such classes, even when the minors are quite young.

This is partly because we think the classes are good exercise, or teach discipline. (The classes may also teach an ideology of responsibility and restraint in using martial arts techniques, but naturally some students can learn the techniques while rejecting the ideology.) But I take it we’d applaud a child’s taking classes even if the child’s purpose was expressly to learn self-defense, and even if the class was designed for that rather than for more extended learning of martial arts as sport, philosophy, or fitness training. We would recognize that self-defense is valuable enough that children should be able to learn to defend themselves even when that also teaches them to attack. Why shouldn’t the same be true, especially as to older minors, for defensive tools as well as defensive techniques?

(We might also think that children who take martial arts classes are especially likely to be “good kids” because they are willing to work hard. But the main concern I’ve heard about older minors’ possessing stun guns has to do with the minors’ lack of maturity, and willingness to use such devices in anger or as a prank. Such lack of maturity is not inconsistent with willingness to work hard.)

To be sure, these analogies are not perfect. Among other things, because nonlethal weapons are less lethal than cars it may be proper to let minors have nonlethal weapons even before they reach driving age. That is in fact the policy in most states, which put no age limit on stun guns and irritant sprays (as well as in Washington, which has deliberately set the irritant spray age limit at 14). On the other hand, my suspicion about the likely rarity of children’s misuse of nonlethal weapons is speculation, for much the same reasons as those mentioned earlier as to adults. If an increase in legal nonlethal weapon possession by 16- and 17-year-olds leads to thousands of stun gun or pepper spray pranks each year, and to very few defensive uses, the case for prohibiting such possession would be stronger (though the analysis would still have to weigh the degree to which stun gun possession deters attacks on older teenagers, and thus makes defensive uses unnecessary).

But absent such evidence, we shouldn’t dismiss older minors’ need for self-defense, just as we shouldn’t dismiss adults’ need for self-defense. And our willingness to run what are likely much greater risks by letting older minors use lethal cars should further counsel in favor of running lesser risks by letting the older minors use nonlethal weapons.


Definitions and defaults in torture:

Torture, as prohibited by U.S. law, is treatment that inflicts "severe physical or mental pain or suffering." But how do we know when a particular interrogation technique imposes "severe physical" or "severe mental" pain or suffering?

To answer that question, the 2002 Bybee memo released Thursday relies heavily on the lessons learned from a U.S. interrogation training program for military personnel called Survival, Evasion, Resistance, Escape (SERE). In SERE training, U.S. military personnel have been subjected to the very techniques proposed for suspected Al Qaeda agents — including the most extreme of the techniques, like extended sleep deprivation and waterboarding. The discussion is at pp. 4-6 in the Bybee memo. Basically, the memo says that the CIA has concluded based on consulting with SERE experts that these methods have caused no "severe physical or mental" harm to U.S. military personnel subjected to them.

There's a lot more in the memo but, frankly, it seems to me that's the heart of it. It's not really a "legal" conclusion calling for the specialized training of a lawyer, in the sense that you can find it in a statute or a binding precedent, but an experiential and empirical one.

So my question is this: how relevant is the SERE experience? Let's assume it's true that U.S. personnel in training programs have suffered no severe mental or physical consequences, and let's assume the enemy detainee would be subjected to no more severe version of the same techniques. (The latter assumption turned out to be untrue: waterboarding as used by the CIA was more intensive than that used in SERE training, according to a May 10, 2005 Steven Bradbury memo to the CIA, see p. 41 n. 51).)

It's one thing to know you are part of a controlled training program administered by your country's own personnel who have no interest in killing or permanently damaging you, and also to know that however awful it is there will be an end of it. It's another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former "interrogator" you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.

Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?

Bybee doesn't even seem aware of these differences, much less account for them in his memo. To his credit, Bradbury saw the limited relevance of the SERE experience in his 2005 memo to the CIA, at p. 6:

Although we refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

Of course, despite the weakness of the evidence available, Bradbury also concluded that the proposed techniques -- including waterboarding -- were not torture. But at least he was candid about it.

There is some discussion of this in the comments to Orin's post of yesterday, including from at least one commenter who implies personal knowledge of SERE. It is claimed that in SERE the trainee loses any sense of safety, time, or perspective. It's hard to argue with actual experience, but if you haven't been through enemy interrogation you can't really know how much worse it might be than SERE using the same techniques. So you can't know how much more likely it is to inflict severe mental pain or suffering. And Bybee acknowledges that there is "no empirical data on the effect of these techniques, with the exception of sleep deprivation." p. 6. (And the "empirical data" for the long-term physical and mental effect of sleep deprivation up to 11 days, the authority sought by the CIA in 2002, consisted of one case.)

With no statutory guidance, no precedent, the opinions of a few CIA consultants he did not personally consult and whose possible institutional and other biases he did not question, and mainly the reported results of the SERE program to guide him, how did Bybee know whether the proposed techniques were torture?

The answer, I think, does not come in the anodyne prose of Bybee's "legal" analysis. It is implicitly contained on the very first page of his memo to the CIA:

The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, [CIA] intelligence indicates that there is currently a level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you describe as an "increased pressure phase."

What Bybee is describing here can't quite be called a "ticking bomb" scenario one might see in a movie or read about in a law review article, but it's about as close as one gets in real life. With the danger believed to be high and the detainee obviously knowledgeable, time becomes critical.

One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee, in accordance with longstanding national and international commitments and aspirations, or (2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work. The choice of default depends on which values seem paramount at the moment. It seems silly to think that these default rules and the values they represent are never in tension. And it seems too hard and pure to imagine that there aren't cases and times, like America in 2002, where one might sometimes choose the latter default rule over the former.

Where one could fault Bybee is in his initial call about which techniques are close to the line of torture and thus subject to an uncertainty default rule at all. Putting someone in uncontrollable fear of imminent death by drowning -- as in water boarding -- is a death threat. Forcing someone to stay awake for up to 11 days, perhaps by making them stand, shackled to a ceiling or wall (the precise method for keeping them awake is, incredibly, not even considered in the Bybee memo), at least runs a serious risk of causing severe physical or mental pain or suffering.

Bybee had before him a prospect we do not confront. If he refused to authorize the techniques the CIA told him it wanted to use, and on that basis the CIA did not use the techniques and did not get further information from Zubaydah, and a devastating terrorist attack followed, his high regard for human dignity would today be seen as a foolish and even calloused disregard for human lives.

All of this may argue for more precision in the definition of torture, including the banning of specific techniques of interrogation in federal law (as opposed to executive policy). Of course that would limit the flexibility one needs to meet unforeseen and dire circumstances. But one way or another torture will be given clearer definition: either in open democratic debate or in secret memos and prisons.

Related Posts (on one page):

  1. Definitions and defaults in torture:
  2. The Torture Memos:
  3. Obama Orders Release of "Torture Memos":

Waking Up Canadian:

A funny video, with a government program to go with it. And note the Doonesbury connection.


High School Students' Copyright Infringement Lawsuit Against Anti-Plagiarism Site Rejected:

I blogged about this two years ago, and concluded that the site would and should win under the fair use doctrine. Yesterday, the Fourth Circuit accepted the site's fair use claims. Here's my summary of the matter from last year, though you might instead just read the Fourth Circuit opinion: is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.

But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial....'s strongest fair use argument (which would be needed if the court concludes that the student did not voluntarily consent to the use of their works) is that though their use is commercial, it is

  1. transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism --

  2. is in aid of others' nonprofit educational mission, and

  3. does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.

The students' strongest response would essentially be that if Turnitin is making money from the students' works, the students are entitled to a share of that, and Turnitin's using the works for free interferes with the students' ability to license their papers to Turnitin itself. The most familiar analogy here would be if Steven Spielberg decides to make a movie out of your novel. It may well be that the movie won't interfere with the value of your novel -- it may even increase your sales--— but his making the movie without paying you interferes with your right to license movie rights to the novel. (Some condemn this as circular reasoning, but I don't think that's quite right, and in any event it is precisely the reasoning that lets authors profit from selling movie rights to their books, and that bars moviemakers from just using the books for free and claiming fair use.) If anything, the students would say, our case is even stronger because our works are unpublished, and the unpublished status of a work is generally seen as cutting in favor of the work's owner and against the fair use claims of the user.

[But] I'm pretty sure Turnitin would and should win, because (1) the value of the licensing rights in their papers would in any case be next to nil, (2) Turnitin's use is transformative -- in the sense that it uses the original to make something that's very different (much as a parody or a photo search engine that presents thumbnails of others' photos is transformative, though not quite in the same way) -- and therefore is not within the authors' legitimate licensing rights (cf. the Supreme Court's holding that "there is no protectible derivative market for criticism"), and (3) the unpublished status of plaintiff's work should only matter when the defendant is trying to publish the work (or a version of the work), which it isn't doing.


Laws That Ban Both Possession or Carrying of Stun Guns and of Handguns (and Sometimes of Irritant Sprays):

(As before, see the full article for more.)

In ten to twelve states, even law-abiding adults generally can’t get licenses to carry concealed handguns. In those states and for those people, stun guns would be the most effective available defensive weapon. In fact, in California and Delaware (except Wilmington), stun guns may indeed be carried even though handguns generally cannot be.

But in the no-stun-gun no-handgun-carry jurisdictions -- Hawaii, Massachusetts, New Jersey, New York, Rhode Island, Wisconsin, Annapolis, Baltimore, the Virgin Islands, Washington, D.C., and Wilmington -- law-abiding citizens are entirely denied the most effective defensive weapons in public. And noncitizens and nonresidents in Massachusetts are denied such weapons, as well as irritant sprays, both in public and at home.

Even in those no-stun-gun jurisdictions (Michigan, Akron, New Orleans, Philadelphia, and South Bend) where handgun carry licenses are generally available, 18-to-20-year-olds are nonetheless not allowed to get such licenses. They are therefore likewise denied both firearms and stun guns in public places. Yet 18-to-20-year-old women need defensive weapons more than most adults do: The average 18-to-24-year-old woman’s risk of being raped is 5 times greater than the risk for the average woman age 25 and above.

Legislatures that ban both carrying stun guns and carrying handguns can at least say they are worried about the criminal uses of weapons generally, not just about the rare situations where a stun gun would be misused but a handgun would not be. And indeed stun guns can be used both for crime and for self-defense.

But this is likewise true for the criminal law justification of self-defense: Allowing lethal self-defense lets some deliberate murderers (or people guilty of voluntary or involuntary manslaughter) get away with their crimes by falsely claiming self-defense. The killer is alive, and able to claim he was reacting to a threat from the victim. The victim is dead, and can’t rebut the killer’s claim. The killer doesn’t have to prove the victim had a weapon, since it is enough for him to claim that the victim said something threatening and reached for his pocket. And the prosecution has to disprove the killer’s claims beyond a reasonable doubt.

Sometimes the jury will see through the killer’s false claims of self-defense, and conclude the claims are false beyond a reasonable doubt. But sometimes it won’t, and the killer will be acquitted. And sometimes a killer will be emboldened to kill by the possibility that he might get away on a self-defense theory. The self-defense defense is thus crime-enabling as well as defense-enabling.

So are irritant sprays, which are now legal nearly everywhere in the United States (of course with the narrow exceptions noted above), though they are indeed sometimes used by criminals. So are the skills taught in fighting classes, whether the classes focus on street fighting (such as Krav Maga), Asian martial arts, or boxing. Someone trained in these things can use the skills for crime -- whether robbing someone or just beating someone up -- as well as for lawful self-defense. (Some of the classes also provide physical fitness and recreation, but some, such as Krav Maga, are focused chiefly on self-defense.) Yet these classes are not only lawful, but generally seen as socially valuable.

Among other things, we expect that criminals will already have plenty of tools -- often deadly ones, such as guns and knives -- for committing crimes. The marginal benefit to criminals of fighting skills is thus comparatively small. But the marginal benefit to law-abiding citizens of such skills is quite large, especially if the citizens are barred by law from carrying deadly weapons.

Stun guns and irritant sprays are in this respect much like fighting skills. Such weapons might be more effective than mere unarmed combat for committing crimes. But they are likewise more effective for self-defense. And for some people -- such as the weak, the disabled, or those whose work or family commitments keep them from taking classes -- unarmed self-defense is just not much of an option, while stun guns are.

It seems to me, then, that stun guns and irritant sprays should likewise be allowed. The law rightly values self-defense, which should include effective self-defense. Nonlethal defensive weapons dramatically facilitate self-defense. They also facilitate crime, but comparatively slightly (again, because criminals have access to many other tools, both highly deadly, such as guns and knives, and less deadly, such as blunt weapons), and at a lower level of harm than lethal weapons such as guns and knives. The protection they offer to law-abiding citizens should justify allowing them, despite the modest risk of crime they pose.


As They Say, "When Seconds Count, the Police Are Only Minutes Away":

The Roanoke Times has the story, including the audio of a 911 call that "represents close to 13 minutes of conversation between [the homeowner], his wife and a 911 dispatcher"; it's not clear exactly what fraction of the 13 minutes was the time it took the police to respond, but it appears that it took many minutes for the police to arrive: "About seven and a half minutes after Hoover calls 911 [because Jones was outside shouting], Jones shatters the glass door with a wrought-iron chair and tries to come in." This may well not be the fault of the police, but it does reveal the value of private self-defense and not just of relying on the police.

Here's the summary,

In the 911 recording, Jody Hoover calls the sheriff's office and tells a dispatcher that there is a "strange man outside our home, and he's hollerin' and he's crying out. I don't know what's going on with him."

Hoover hands the phone to his wife while he gets his double-barreled, 12-gauge shotgun.

Jones can be heard yelling and repeatedly banging on the back sliding glass door.

Hoover's wife tells the dispatcher that the man is talking about Vietnam and 1969, and that he asked Jody Hoover for the date.

Hoover talks to the man from inside. "I don't want to hurt you," he says. "I can't let you in.

"Please, just go away. Please."

About seven and a half minutes after Hoover calls 911, Jones shatters the glass door with a wrought-iron chair and tries to come in.

Hoover told authorities that he shot at Jones twice. Deputies arrived at the house as the shots were fired. Jones was pronounced dead at Carilion Roanoke Memorial Hospital....

In 2005, Jones was found guilty in Botetourt County of brandishing a firearm and in 1999 and 2000 he was found guilty in Roanoke County of driving under the influence.

I should acknowledge that it's of course possible that, after this extremely drunk man broke the door with a chair, he wouldn't have hurt the residents (or at least wouldn't have hurt them much). We can't know what would have happened. But I'm glad that the Hoovers didn't have to run that risk.

Thanks to Hill Welford for the pointer.


A Good Time to Be a Bankruptcy Lawyer:

This will come as no surprise, but it is a good time to be a bankruptcy lawyer. The front page of the WSJ reported yesterday (may be subscriber only) that Weil, Gotshal & Manges is requesting $55.1 million in quarterly fees and expenses for its work in the Lehman Brothers case. "The firm says it worked more than 100,000 billable hours during that period. Lead lawyer Harvey Miller is asking to be paid $950 for each of the nearly 795 hours he worked during the period."

And a few months back was the first reported sighting of a $1000 an hour bankruptcy lawyer, an English chap at Kirkland who cracked the $1000 barrier after converting dollars into pounds. The rate for Kirkland's domestic bankruptcy partners topped out at $965 an hour. Skadden's lawyers requested $1050 an hour for its work in the Circuit City bankruptcy case.

There are several structural peculiarities in bankruptcy that tends to push fees in an upward direction.

First, as Lynn LoPucki stresses in his book Courting Failure, forum-shopping in bankruptcy is easy and prevalent. And one of the margins on which a debtor can forum-shop is the receptiveness of bankruptcy judges in a given district to generous awards of attorneys' fees. So a judge that takes a hard-line on fees, such as capping fees at a local prevailing rate or scrutinizing the necessity of expenses closely, will soon discover that no big cases are filed in his court. Firms like Weil or Kirkland won't accept a case unless they get these rates. So a debtor given a choice between a venue that pays full fees versus one that limits fees will choose the one that pays full fees because otherwise it won't get the lawyers of its choice.

Second, fees are paid from "the estate" rather than a typical client. There is no inherent incentive for the debtor-in-possession acting on behalf of the estate to seek to minimize fees. Creditors can object to excess fees, but the lawyers for the creditors committee are also paid from the estate. As a result, if the creditors' lawyers object to the fees of debtor's counsel, debtor's counsel later may object to the fee requests of the creditors committee's lawyers. Thus, they are repeat-players and tend to adopt a "go along to get along" attitude toward each others fees, rather than vigorously challenging excessive fees.

Third, unlike a traditional client, bankruptcy lawyers don't really negotiate their fees with the debtor in the case. Because the fees are paid from the estate, the debtor has no incentive to try to cut down hourly rates or to demand volume discounts or the sort of thing that occurs in regular legal practice.

All of these factors tend to exert an upward hydraulic pressure on fees in bankruptcy. Thus, while one might expect that the overriding principle of fees and expenses in bankruptcy cases would be one of "economy" (which was the principle until 1978), today bankruptcy lawyers tend to push the upper-end of fees and expenses for lawyers.

This points out an issue for Congress to think about. There have been much chatter about whether federal judges are underpaid. I take no position on the general point. These massive fees in bankruptcy cases, however, does raise the question about the adequacy of salaries for bankruptcy judges. The opportunity cost for bankruptcy judges in this economy seems extremely high. And while there are many good things about being a bankruptcy judge, they are paid less than Article III judges (92% of a district court judge salary) and lack the prestige and life tenure of Article III judges. As a result, their salaries also are tied to those of district court judges.

Thus, one possible concern to keep an eye on in the near future is the potential that smart and able bankruptcy judges may be tempted to leave the bench in the near future to take advantage of what is starting to look like a once-in-a-lifetime opportunity in private practice. I've not heard of bankruptcy judges stepping down for this reason, but I'm sure there must be some and there will be more.

While on my soapbox, and regardless of what one thinks of raising bankruptcy judges' salaries, one area of bankruptcy practice that needs to be addressed is the ridiculously low rate paid to Chapter 7 trustees in no-asset cases. Chapter 7 trustees are paid $60 for a no asset case, a sum that has not been raised in years. I was talking to a chapter 7 trustee the other day and he noted that today's no-asset 7's are not at all like those in the past. He had a case where a debtor owned 10 properties, all encumbered by various liens, mortgages, and junior mortgages. So technically it was a case with no assets to be distributed to unsecured creditors. Yet he had a fiduciary duty to figure out what was happening with all those properties. That seems absurd. It seems especially absurd in light of the fact that the unwinding of the real estate bubble is going to expose more than usual levels of fraud for which chapter 7 trustees are going to be essential to uncover.


Thursday, April 16, 2009

Frivolous: My co-blogger David Kopel links to the lawsuit filed by Michael Savage and others over the "Right-Wing Extremism Report" issued by DHS. Isn't the lawsuit frivolous? As I read it, the lawsuit is claiming that the issuance of a government report criticizing certain groups violates the plaintiffs' constitutional rights. But the Constitution doesn't provide a constitutional right to have the government not say things that might be considered criticism. Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?

The "They Ruined My Christmas" Doctrine

rejected by the federal district court for the District of Arizona, in Yount v. Regent University, Inc., No. CV-08-8011-PCT-DGC (April 14):

Plaintiff moved for sanctions on January 16, 2009 due to Defendant's method and timing of service: “[t]he Certificate of Service [states that Defendant's motion] was sent by ‘Mail’ on December 20th when, in fact, it was hand delivered [by Fed Ex] ... on December 24[.]” Dkt. # 68 at 2. Plaintiff asserts this Christmas Eve service reflected an effort by Defendant to disrupt Plaintiff's holiday and to violate his rights under the First Amendment.

To quote the plaintiff, "Obviously, the Defendant wanted to taint the Plaintiff's religious celebrations, and as an officer of the Court, Mr. Myer should be cautious of violating the Plaintiff's First Amendment rights during his religious celebrations."

No dice, says the court, presumably taking the view that no-one has the right to a Christmas unmarred with memories of service of legal documents.


Suit filed over Dept. of Homeland Security Memo/"Policy" on Right-wing Extremists:

The Thomas More Law Center has filed suit in the Eastern District of Michigan regarding the infamous Department of Homeland Security "Intelligence Assessment," Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment. The Assessment states "The information is provided to federal, state, local, and tribal counterterrorism and law enforcement officials so they may effectively deter, prevent, preempt, or respond to terrorist attacks against the United States."

Critics of the Assessment object to passages such as the following:

Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration....

The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks....

Proposed imposition of firearms restrictions and weapons bans likely would attract new members into the ranks of rightwing extremist groups, as well as potentially spur some of them to begin planning and training for violence against the government. The high volume of purchases and stockpiling of weapons and ammunition by rightwing extremists in anticipation of restrictions and bans in some parts of the country continue to be a primary concern to law enforcement.

Debates over appropriate immigration levels and enforcement policy generally fall within the realm of protected political speech under the First Amendment, but in some cases, anti-immigration or strident pro-enforcement fervor has been directed against specific groups and has the potential to turn violent. [DK: The implication here seems to be that being against "the vast tide of illegal immigration" is protected by the First Amendment, but being against "the vast tide of illegal immigration by Central Americans" is not, and is characteristic of "right-wing extremism." Even though, patently, Central Americans are by far the largest groups of illegal aliens currently in the United States.]

Notably, there are passages that recognize that certain behaviors or beliefs are in themselves not proof that a person is a "right wing extremist." For example:

Both rightwing extremists and law-abiding citizens share a belief that rising crime rates attributed to a slumping economy make the purchase of legitimate firearms a wise move at this time.

Weapons rights and gun-control legislation are likely to be hotly contested subjects of political debate in light of the 2008 Supreme Court's decision in District of Columbia v. Heller in which the Court reaffirmed an individual's right to keep and bear arms under the Second Amendment to the U.S. Constitution, but left open to debate the precise contours of that right. Because debates over constitutional rights are intense, and parties on all sides have deeply held, sincere, but vastly divergent beliefs, violent extremists may attempt to co-opt the debate and use the controversy as a radicalization tool.
But even the above sets up a dichotomy between "rightwing extremists and law-abiding citizens." There is nothing illegal about holding and expounding extremist, irrational, and even hateful political views, whether those views are left-wing extremist or right-wing extremist.

Plaintiffs in the lawsuit are the Center for Bioethical Reform (a group which chacterizes its mission as "graphically exposing the injustice of abortion"); an Iraq War veteran who lives in the Eastern District of Michigan; and Michael Weiner (a talk-show host who uses the on-air name "Michael Savage").

The suit alleges that the DHS Intelligence Assessment "is designed to deter, prevent, and preempt activities that government officials deem to be in opposition to the policies advanced by the Obama administration. Such activities are considered harmful, dangerous, and a threat to national security. By deterring, preventing, and preempting such activities, federal officials seek to influence domestic public opinion in support of the favored policies of President Obama."

It is further alleged that the Intelligence Assessment (which plaintiffs characterize as DHS "Rightwing Extremism Policy") "is a tool of intimidation for federal, state, and local government officials. It provides a basis for government officials to abuse their positions of power to stifle political opinion and opposition. It also provides political adversaries with a basis for making official complaints and allegations against 'rightwing extremists' to government officials, thereby empowering the 'heckler' with a 'veto' over controversial political messages."

Thus, plaintiffs allege an effort to chill the exercise of their First Amendment rights, and a denial of their Fifth Amendment right to Equal Protection. (Which well-established precedent has declared to be implicit in the Fifth Amendment's Due Process clause.)

Now, on some websites, comments would consist of ugly arguments between people who love or loathe Michael Savage, or trolling by people claiming, "You only complain about civil liberties infringements when Democrats do them." But well-informed VC readers know that many VC authors were vocal opponents of what they considered to be civil liberties infringements by the George W. Bush administration, and some of the older VC writers were also critics of alleged civil liberties infringements during the George H.W. Bush administration, and the Reagan administration.

Accordingly, commenters should offer intelligent analysis of whether the Thomas More Center lawsuit can, on its face, survive a motion to dismiss. If so, should the case proceed directly to summary judgement, or is there a need for discovery? Presumably discovery, if permitted, might reveal information about the motives ("design") of the Assessment's authors, and the sources on which they relied in forming the Assessment, which says that it is based on open source information. (BTW, the Thomas More Center has also filed a FOIA request for the latter information.)

And yes, it is ironic that Thomas More himself, when he exercised government power, was a staunch persecutor of religious dissenters; he was neither the first nor the last lawyer to better serve the cause of civil liberty when he was out of government favor than when he was in.

Related Posts (on one page):

  1. Frivolous:
  2. Suit filed over Dept. of Homeland Security Memo/"Policy" on Right-wing Extremists:

University of North Carolina-Chapel Hill Chancellor on the Thuggery at the Tancredo Speech:

Jan Rybnicek passes along this e-mail sent to students, faculty, staff, and alumni by the UNC-Chapel HillChancellor:

Message from the Chancellor: Free Speech at Carolina (April 15, 2009)

Dear Students, Faculty and Staff:

I want to express how disappointed I am in what happened last night when former Congressman Tom Tancredo wasn't able to speak when a protest got out of hand, and our Department of Public Safety had to take action. Congressman Tancredo felt threatened and left without making his remarks.

Mr. Tancredo was scheduled to speak about immigration. We expect protests about controversial subjects at Carolina. That's part of our culture. But we also pride ourselves on being a place where all points of view can be expressed and heard. There's a way to protest that respects free speech and allows people with opposing views to be heard. Here that's often meant that groups protesting a speaker have displayed signs or banners, silently expressing their opinions while the speaker had his or her say. That didn't happen last night.

On behalf of our University community, I called Mr. Tancredo today to apologize for how he was treated. In addition, our Department of Public Safety is investigating this incident. They will pursue criminal charges if any are warranted. Our Division of Student Affairs is also investigating student involvement in the protest. If that investigation determines sufficient evidence, participating students could face Honor Court proceedings.

Carolina's tradition of free speech is a fundamental part of what has made this place special for more than 200 years. Let's recommit ourselves to that ideal.


Holden Thorp

Related Posts (on one page):

  1. University of North Carolina-Chapel Hill Chancellor on the Thuggery at the Tancredo Speech:
  2. Thugs Suppressing Free Speech:

The District Court's Decision To Allow Gavel-To-Gavel Webcast in a File-Sharing Lawsuit

has just been reversed by the First Circuit in In re Sony BMG Music Entertainment. The court relies chiefly on the text of a District of Massachusetts local rule, but also suggests that the Judicial Conference's policy for federal courts likewise cuts against such webcasting. And though the policies involved bar "televising," the court concludes that

The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specific reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.

The court also rejects the argument that there's a First Amendment right to have proceedings webcast:

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

This is no surprise, since that has been the view of the federal courts on the subject for quite some time.

Careful students of the First Circuit will be able to guess who wrote the opinion when I tell them that the opinion uses the words "impuissant," "perscrutation," and "sockdolager." Going through the Google results for "perscrutation" reveals only 324 items (as usual, including some junk pages), though I'm sure there will be more soon.


An LL.M. for Fresh Graduates?

So law firms are asking some new hires to defer going on the payroll for a year, and often are paying a stipend for the year. Law firms have also long been complaining that their incoming associates don't have enough skills training.

UCLA's answer: An LL.M. for recent graduates, which is supposed to largely focus on skills training. (The LL.M. isn't limited to students whose jobs have been deferred for a year, but I expect that they will make up a big chunk of the applicants.) Apparently we're the first school to do something like that. Will people snap it up or shun it en masse? We'll know in a few months. One possible problem is that even people who could really profit from the degree might just be sick and tired of school; but it strikes me as potentially quite useful to many students.

I should note that I wasn't at all involved in planning this project. In fact, today is the first time I heard of it (I was out of town during the faculty meeting when it was approved, and I wasn't on the relevant planning committee). Naturally, as a UCLA guy I'd love to see it succeed, and I suspect it will, but check back this Fall.


The Torture Memos: The ACLU has links to the four torture memos released today here. I'm reading them now, and may post some thoughts later on.

  FIRST UPDATE: I'm initially struck my how little information is redacted, and by how much information the memos reveal about the details of the interrogation practices. Presumably this signals that the Administration has decided that it won't in any way rely on these procedures in the future.

Avoiding Nonlethal-Weapon Crime as Justification for Restricting Nonlethal Weapons Even When Firearms Are Allowed:

(As before, see the full article for more.)

The nonlethality of stun guns and irritant sprays does make it possible that such weapons will be abused in situations where firearms wouldn’t be, though each such abuse would likely be much less harmful. Robbers might be likelier to stun victims than shoot them, precisely because this won’t expose the robber to a murder charge (and because stun guns are quieter, even than firearms with illegal silencers). People looking for revenge, or trying to pull a prank, might stun or spray their victims even if they wouldn’t have tried to kill them.

There are, though, three countervailing factors that should overcome this extra risk of abuse. First, nonlethal weapon bans, especially city- and state-level ones, are likely to have only modest effects on the already seemingly modest level of stun gun or irritant spray crime, precisely because much such crime would be perpetrated by serious criminals. Someone who is not stymied by the laws against robbery, rape, and kidnapping is unlikely to be much influenced by laws against possessing stun guns or sprays. (The Taser Corporation’s products have a special “Anti-Felon Identification” feature that tries to reduce taser crime still further: “Every time a TASER cartridge is deployed, 20-30 small confetti-like Anti-Felon Identification (AFID) tags are ejected. Each AFID is printed with the serial number of the cartridge deployed, allowing law enforcement to determine which cartridge was fired.” This feature, however, doesn’t operate when the stun gun is used in contact mode; and it’s not useful for tracing the stun gun if it has been stolen. I therefore won’t rely on this feature in my analysis.

The bans would make it harder to buy nonlethal weapons locally, if such weapons (especially stun guns) remain rare enough that no black market develops. But many criminals would have no trouble visiting a neighboring state to buy the stun gun or the spray, or asking a friend to do that, or just driving out of town if the ban is only city-level. And bans on carrying stun guns, in jurisdictions that allow buying them, would be even easier for criminals to violate.

Second, a crime committed with a stun gun or irritant spray will often be a crime that would otherwise have been committed with a gun or a knife. This is especially true of robbery, rape, and kidnapping, but it may also be true of revenge attacks (for instance, by people who caught their spouses cheating).

Thus, nonlethal weapon bans might decrease painful stunnings or pepper spray attacks, but might increase knife and gun crimes that cause death, serious injury, and psychological trauma. And even if the stun gun crime or irritant spray crime would otherwise have been performed using only manual force, that too could have led to serious pain, to lasting injury, or even to death — especially given that the sorts of robbers who are likely to use manual force are likely ones who are strong enough to inflict significant injury.

Third, nonlethal weapon bans are likely to have a far greater effect on self-defense by law-abiding citizens than on attacks by criminals. A woman who wants a stun gun or irritant spray for self-defense is much more likely to be deterred by the threat of legal punishment for illegally buying, possessing, or carrying the nonlethal weapon than a criminal would be. And if she can’t get the nonlethal weapon that works best for her, she might be less able to protect herself against robbery, rape, abuse, or even murder.

Why then do some jurisdictions treat nonlethal weapons — especially stun guns — worse than firearms? My sense is that it isn’t because allowing stun guns is indeed more dangerous than allowing only firearms. Rather, it’s because firearms bans draw public attention and hostility in ways that stun gun bans do not.

There is no well-organized National Stun Gun Association that has millions of members who fight proposed stun gun bans. There is no stun gun culture in which people remember being taught to use stun guns from an early age. Stun guns are too new and too rare for that. There is also no stun gun hunting, stun gun target-shooting, or stun gun collecting that makes people want to protect stun gun possession even when they feel little need to have stun guns for self-defense.

Moreover, many stun gun bans date back to the 1970s and 1980s, before the Taser Corporation started widely marketing guns to the public. At the time, stun guns might well have seemed like exotic weapons that are rarely used for self-defense by law-abiding citizens. It was therefore easy to ignore the effect of stun gun bans on self-defense, even in states whose laws reflected the potential value of firearms for self-defense. But today stun guns are practically viable self-defense weapons, owned by over 100,000 people. The self-defense interests of prospective stun gun owners in the no-stun-gun states ought not be ignored.

Much of this, of course, is speculation. There is no available data about how often stun guns or irritant sprays are used either criminally or defensively. The Uniform Crime Reports, our best source on crimes reported to the police, doesn’t provide a category for such crime. Neither does the National Crime Victimization Survey, our best estimate of all crimes, whether or not reported to the police. Neither does the Centers for Disease Control’s WISQARS Fatal Injury Reports and Nonfatal Injury Reports query system. So speculation is all we have, and it’s all that the legislatures that banned stun guns or irritant sprays had.

But for the reasons I mentioned above, I think such speculation strongly points towards the choice selected by 43 states (minus a few cities) as to stun guns and 49 or 50 states (minus some restrictions in a few states) as to chemical sprays: allowing stun gun and chemical spray possession, and criminalizing only misuse. And this is especially so given the value of self-defense — a value that, as Part III discusses, is constitutionally recognized — and the value of freedom more broadly. If there is uncertainty, we should resolve this uncertainty in favor of letting law-abiding people use nonlethal tools to defend themselves and their families.


EPA's Endangerment Finding:

Word is that the White House has given the go ahead for the Environmental Protection Agency to make a formal finding that the emission of greenhouse gases may be reasonably anticipated to harm public health and welfare, perhaps as early as tomorrow. This finding is the trigger for the regulation of greenhouse gases under the Clean Air Act. So, if such a finding is made -- and presumably finalized after a notice-and-comment rulemaking -- the next step will be for the EPA to begin developing regulations to control GHG emissions from motor vehicles and other sources.


Renewable Energy v. Wildlife

Environmental activists and alternative energy enthusiasts continue to discover that there's no such thing as "green" energy -- if by that we mean significant sources of energy free of significant environmental impacts.

Renewable-energy development, which the Obama administration has made a priority, is posing conflicts between economic interests and environmental concerns, not entirely unlike the way offshore oil and gas development pits economics against environment. But because of concerns about climate, many environmentalists and government agencies could find themselves straddling both sides, especially in Western states where the federal government is a major landowner.

As the push for renewable-energy development intensifies across the United States, scientists and activists have begun to voice concern that policymakers have underestimated the environmental impact of projects that are otherwise "green."


Obama Orders Release of "Torture Memos":

President Obama has decided to release OLC "torture memos" drafted between 2002 and 2005. In his statement (reproduced here), he cited "exceptional circumstances" justifying the memos' release (reportedly over the objection of some intelligence officials). He also said that those who relied upon the memos "in good faith" would not be prosecuted for their actions.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

Related Posts (on one page):

  1. Definitions and defaults in torture:
  2. The Torture Memos:
  3. Obama Orders Release of "Torture Memos":

Peruvian village militia bleg:

One tactic of the Peruvian government, in its war against the Maoist terrorist organization that called itself "El Sendero Luminoso" (The Shining Path), was to supply arms to village militias which had already formed spontaneously. These village militias were known as "Rondas."

Sometimes Rondas created their own parallel judicial system, outside the formal legal system. Yet their community defense was very consistent with the Peruvian Constitution, which declares that the protection of the human person (a term from Catholic thought) is the supreme objective of the state, and that every person has the right to legitimate defense:

art. 1: “La defensa de la persona humana y el respeto de su dignidad son el fin supremo de la sociedad y del Estado.” art 2: “Toda persona tiene derecho:…§ 23. A la legítima defensa.”
However, the Rondas were also charged with human rights violations.

A similar policy is currently being implemented in southern Thailand, where the government has been supplying defensive arms to village militias for protection from Islamic terrorists. (The Thai situation is discussed at page 17 of my forthcoming article in the Connecticut Law Review, "Pretend 'Gun-Free' School Zones: A Deadly Legal Fiction."

I would like to learn more about Rondas. Well-informed commenters are invited to recommend sources in either English or Spanish.


Why Some People May Reasonably Prefer Nonlethal Weapons Over Guns:

[This is part of a series of posts drawn from my Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion (forthcoming in the Stanford Law Review). For footnotes, and for the rest of the argument, check out the full draft; I will also post most of the rest of the argument in the coming days.]

Some people are especially reluctant to use lethal force or possess lethal tools, even when they legally can. There are many possible reasons for this, some of which may be mutually reinforcing:

(1) Some people have religious or ethical compunctions about killing.

(2) Some feel they will be emotionally unable to pull the trigger on a deadly weapon even when doing so would be ethically proper.

(3) Some worry about erroneously killing someone who turns out not to be an attacker.

(4) Some are reluctant to kill a particular potential attacker, for instance when a woman doesn’t want to kill her abusive ex-husband because she doesn’t want to have to explain to her children that she killed their father, even in self-defense.

(5) Some fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. It’s not clear whether the availability of guns actually increases the risk of suicide, given the availability of other comparably lethal means, but it’s at least reasonable to be concerned about the possibility that a gun would make suicide more likely. And this is especially so because some people might feel especially emotionally traumatized if their guns are used by a family member or friend to commit suicide, even if they suspect that the suicide would have happened in any event.

These are not just esthetic preferences, such as a person’s desire to have a particular gun that he most likes, or that has special sentimental value (for instance, his father’s military-issue weapon), when other equally effective guns are available. Perhaps even those esthetic preferences should be respected in the absence of particularly good reasons to disregard them. But there should be even more respect for preferences that stem from understandable and even laudable moral belief systems and emotional reactions, or reasonable worries about the risk that a gun might be abused. Even if one thinks (as I do) that killing in self-defense is morally proper, people who take the opposite view should be presumptively free to act on their beliefs without having to go without the most effective self-defense tools.

(A few people might be able to learn unarmed self-defense techniques. But many people can’t, because they are physically disabled or otherwise not strong enough. Many others might lack the time needed to train themselves in such techniques, especially if they have work or family obligations. And even those who are comparatively well-trained might end up being considerably less effective with their limbs alone than they would be with a stun gun.)

Naturally, many people don’t have such worries, or conclude that the value of having a gun for self-defense overcomes such worries. Both firearms and nonlethal weapons can stop people, and can deter through the risk of pain or incapacitation leading to arrest. But firearms have the major extra deterrent force of threatening death: That’s why “I have a gun!” is more likely to cause an attacker to flee than “I have a stun gun!”

Also, civilian stun guns today are good only for one shot. After the cartridge is shot, the stun gun can only be used in direct contact mode. This makes stun guns less useful than firearms against multiple attackers, or when the defender misses with the first shot.

But this just shows that many people may reasonably prefer firearms for self-defense. It doesn’t undermine the legitimacy of other people’s preference for stun guns or irritant sprays instead of firearms.

A ban on stun guns would be a less substantial burden if other nonlethal weapons remained available and were pretty much as effective for self-defense purposes. But batons and similar devices generally aren’t as effective at stopping the attacker with one blow, and, to be even moderately effective, they require strength that many defenders don’t possess.

Stun guns also appear to be materially more effective than irritant sprays. Pepper spray (the most effective irritant spray in use today) may still leave the attacker able to attack, though he is distracted and in pain. It’s especially likely to be ineffective when the attacker is less sensitive to pain because he’s drunk or on drugs. To be most effective, pepper spray requires a hit on the suspect’s face rather than, as with a stun gun, any part of the suspect’s body. Pepper spray may in part blow back at the defender, which can leave the defender especially vulnerable if the attacker isn’t entirely stopped. And pepper spray has an effective range of only about 7 feet (about the average width of a car), as opposed to 15 feet for modern stun guns. Since an attacker can lunge 7 feet in a split second, pepper spray gives a defender less time to react.

Pepper spray does have advantages. It can be used at a distance more than once, which is useful when one misses the first time, or needs to fight off multiple attackers. It’s also much cheaper than a stun gun. Bans on carrying irritant sprays would thus also materially interfere with people’s ability to defend themselves, even if stun guns were an available option. But that just reflects that different defensive devices are optimal for different people, and that banning either one may materially interfere with the ability of many people to defend themselves.

[More on the arguments in favor of such nonlethal weapons restrictions, even when when guns are allowed, in coming posts.]


Illegal NSA Wiretaps:

The NYT reports that "in recent months" the National Security Agency has engaged in surveillance beyond what is allowed under federal law. A few excerpts from the story:

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

This little bit also caught my eye.

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said. . . .

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.


[Eugene Kontorovich, guest-blogging, April 16, 2009 at 10:11am] Trackbacks
Just an Honest Fisherman

A professor of piracy often deals with eye-patch and hook jokes. Many people who find this academic specialty intriguing lose interests when they learn that modern pirates wear jeans, tee-shirts and flip-flops, or when they’re feeling natty, fatigues. They certainly don’t fly a black flag. They have very bad personal hygiene: forget Johnny Depp and Cary Elwes.

Yet the ordinary appearance of pirates leads to a potentially serious problem in prosecuting them.

Universal jurisdiction only applies to pirates. Captured Somalis are likely to insist in court that they are not pirates but rather simple fishermen, erroneously seized by a foreign navy. What makes the claim compelling is that most pirates are in fact fishermen. Piracy is not a full-time job. Simply having weapons on a boat would not distinguish the pirates from many other Somalis. Establishing the very identity or even nationality of captured individuals will be difficult, as they are unlikely to possess identification. (This will also make it hard to know whether a captured pirate is a minor; or even what nation he comes from, making consular rights and other issues quite difficult to administer.)

Such challenges must be taken seriously, because the alternative is the detention of innocent civilians. To be sure, treating the detainees as civilians would require giving credence to some dubious factual claims. However, the same is true of many Guantanamo detainees captured in Afghanistan and elsewhere. They have claimed that they were innocent passers by, aid workers, tourists, minors, or simply ignorant of the nature and aims of the organization for which they worked. Regardless of their plausibility, these claims won significant sympathy for the detainees. Moreover, U.S. courts have held that because the power to detain depends on the foreigner’s status as a combatant, detainees can appear before tribunals to challenge the factual basis for being classified as a combatant even before a full trial for their alleged crimes.

Quite simply, making a criminal case against armed foreigners seized in remote parts of the world is very difficult. These concerns are not speculative. Evidentiary problems have already forced the U.S. Navy to release most of the pirates it seized in the wake of its January 2009 agreement with Kenya. Even though they were caught in response to a distress call from a commercial vessel, the evidence was “not ironclad.”


Clarence Thomas Speaks at Bill of Rights Institute Banquet:

A few weeks back, Supreme Court Justice Clarence Thomas spoke at the annual banquet of the Bill of Rights Institute honoring the national winners of the "Being and American" essay contest. A full description of the contest and a listing of the winner is here. C-Span broadcast his remarks last night, but I was out of town and missed it. You can download a transcript (including the Q&A) here. I don't know whether C-Span intends to rebroadcast the speech, but this seems like the sort of thing that it would. Juan Williams was the emcee, and his comments are quite interesting as well. After his prepared remarks, Justice Thomas took time to answer several questions from students, which provided additional insight into his thinking.

Thomas's remarks were quite touching and personal, keeping with the theme of the banquet and essay contest on "Being an American." He talks a great deal about his growing-up, touching on themes raised in his autobiography. He also talks a lot about the challenges and awesome responsibility of sitting on the Court.

A few excerpts that I found especially interesting (although pretty much the whole thing is interesting). In response to the question "How does your faith or your world view impact your role as a Supreme Court Justice?" Justice Thomas says:

Well first of all I don’t even know what a world view is anymore. You think you have things figured out when you’re young and then you as you get older you figure, oh my goodness all that’s wrong. I think the more you learn, the more reluctant you are to say I’ve got it all figured out because some of this is beyond me. But as far as your faith, I think that it really gives content to the oath that you took. You took an oath to do a job right. You know, I hear people say, they ask questions like, such as, what do you want your legacy to be? Yeah, what do I know? I’m not going to be here anyway when you have a legacy. But the point is, we’re not in the job to establish a legacy. We’re in the job to live up to an oath and do it right and I think faith gives content to that because you say “so help me God”. The other thing is that there’s some tough cases. There are some cases that will drive you to your knees, and in those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it. But beyond that you don’t, it would be illegitimate I think and a violation of my oath to incorporate my religious beliefs into the decision making process. And I don’t think it’s appropriate so I don’t do that. It’s more personal, it really helps me to do the job the right way and to do it properly. (clapping)

In response to a question about whether his judicial philosophy has changed over time, he remarks:

Well in law school I didn’t have one, I was just trying to graduate. You know in law school you really don’t know a whole lot, you learn substantive due process, you try to figure out what emanations from penumbras are, you take your tort classes and your UCC Classes and you do your best. And I think what happens is you grow up. I mean you’ve been a judge (to Napolitano), when you begin, it’s one thing to learn a case. It’s another thing to use that case to decide another case, to decide the fate of someone. Those are two entirely different endeavors. You know and this could be totally wrong and it may be totally apocryphal but I’ll say it anyway recognizing that I disclaim whether it’s accurate or not, but it makes the point.

There are many people who think because they know a theory about law, that that’s the same thing as actually judging. You’ve done both, you know the difference (to Justice Andrew Napolitano). It is much harder to do the judging part than to talk about it. So someone said to me that a great basketball player, and they used Michael Jordan at his prime, had been criticized by a sport’s writer who really knew basketball. And someone went to Michael Jordan or some other great player and said to him, “this reporter criticized you”, the sport’s reporter, “what do you think of that?” And his response supposedly was, “tell him to suit up”. Those are two entirely different endeavors- playing the game and knowing about the game. So I think that the whole process of learning a judicial philosophy, my judicial philosophy is to try to discern the intent of the framers in constitutional cases, and in statutory cases, the intent of the legislature and to try to keep my personal views out of it completely, as best I can, does that make sense? Thank you. (clapping)

And an amusing dig at all of back-seat drivers of the Court's work:

I think though the way it’s really changed me, I think even talking tonight, I’m very very reluctant to, to have a strong opinion on something without having briefs or opinions to read and think through. It slows you down because, you know this job is easy for people who’ve never done it. [laughter, clapping] And what I have found in this job is that they know more about it than I do, especially if they have the title “law professor.” It also is easy with people who know what they think before they’ve thought. They know how they’re going to come out and which position is the right position. For the rest of us who have to decide, and who want to live up to that oath to do it the right way, it is a little bit, it is a lot harder, and it requires that you not have these strong, un-counseled stakes in issues that are going to come before you. So you’re reluctant to dig in on these big things that are happening in our society until you’ve had a chance to think them through, until you’ve got a case before you. So that’s sort of a long way of saying it slows you down a little bit.

Anyway, it is a fascinating lecture, entertaining, heart-felt, and insightful, ruminating on the balance between personal liberty and personal responsibility that is necessary to sustain a free society. Needless to say, all of this was just too mind-blowing for those at the New York Times which filed this report on the speech. Read the speech, then read Adam Liptak's story, and then ask yourself why the Times now has so little credibility with many of us. I have to admit, I don't even read it anymore and I only saw this story because somebody pointed me to it. Of course, this is the same newspaper that once quoted from a parody website website spoofing a Dartmouth student secret society as if it was a real website.

BRI is an extraordinary organization and it has been my great privilege to be associated with the group from its inception, first as the Chair of the Academic Advisory Council and now as a member of its Board of Directors. The "Being an American" Essay Contest is the largest of its type in the United States and this year over 30,000 students submitted essays. If you are a high-schooler or have children or siblings of high school age, I commend to you both the essay contest as well as BRI's "Constitutional Academy," which culminates in a week-long summer program in DC taught by college professors. Student participants can earn three hours of college credit for completing the program.


C-Span has the video available on its site and I didn't find it when I searched for it. It is under the heading of "Justice Thomas on National Identity and Citizenship" which I just didn't recognize by the title and is here. It is worth watching and seeing it is quite different from the characterization suggested by Liptak.


Many arguments against allowing private gun ownership or gun carrying strike me as quite plausible; I think they're mistaken, but they make sense. The arguments claim that banning guns would provide more benefits, especially in saving people's lives, than the costs that such a ban would impose (frustrated self-defense, decreased deterrence, and other things). I think that this argument is empirically unlikely, and morally troublesome. But it makes sense on its own terms.

Occasionally, though, I run across a different phenomenon — both as to guns and as to other things — that I think of as "self-defense-blindness": a complete failure to even consider self-defense as one of the functions of a gun or other weapon. Either the speaker doesn't even think of self-defense, or at least he assumes that the listener can be persuaded not to think of self-defense.

We see this, for instance, in claims that some guns should be banned because they lack a "sporting purpose," without considering a possible self-defense purpose. We also see this in statements that guns are good only for killing. Even if one includes threatening to kill alongside killing (and ignores target-shooting), talking about "killing" in condemning guns without distinguishing criminal killings/threats from self-defense killings/threats strikes me as self-defense-blindness.

But in doing research for my nondeadly weapons article, I saw the same for non-firearms devices as well. Consider Tear Gas — Pencil Gun — Dangerous Weapon, 26 Opinions of the Connecticut Attorney General 207 (1950). The question was whether "tear gas pencil gun[s]" (described basically as individualized irritant spray weapons) should be treated as "dangerous or deadly weapon[s]" for purposes of the Connecticut statute banning the carrying of such weapons without a permit. The A.G. said yes, and that's a plausible bottom-line, if the question is just whether the device is dangerous. But consider the A.G.'s rationale:

It is obvious that the function of this so-called pencil gun is to injure and to disable an individual and it is inconceivable that this instrument would be used or has any other function than to disable temporarily or permanently. It may well be that in the hands of proper authority, such as a police official, the temporary disabling of an individual or individuals may ultimately serve a useful function. However, in the hands of an individual without any such authority, there is no question but that the pencil gun could only be calculate [to] injure.

It is our opinion, therefore, that the so-called tear gas pencil gun is a dangerous and deadly weapon within the provisions of [the statute].

So the only "useful function" for a tear gas pencil gun is when police officers use it to temporarily disable people. The possibility that a citizen who wants to defend himself (or herself) might "useful[ly]" do so with a tear gas pencil gun is simply omitted. Nor is the A.G. simply commenting on the physical reality that the tear gas pencil gun can be dangerous regardless of whether used for good or ill; he's making a normative judgment that the device is "useful" when used by the police, but not even discussing whether people might find it equally "useful" for self-defense.

And all these examples aren't about guns. They can't just be described as the direct effect of hostility to guns. Nor can they be defended on the grounds that they implicitly borrow from the standard critique of gun ownership. Rather, they seem to be part of a broader blindness to self-defense, and an unthinking assumption that the "useful function," the "common lawful purpose," and the "customary employment" of weapons simply doesn't include lawful self-defense.

All the states of the union legally allow self-defense. They even allow deadly self-defense when necessary to repel a threat of death, serious injury, rape, kidnapping, or in many states robbery (or even burglary). But despite this, the arguments I quoted above (and many like them) simply ignore self-defense altogether. The arguer is self-defense-blind, or he wants his listeners to be.


Response to Dartmouth Booting:

George Leef ponders the larger implications of the Dartmouth Board majority's decision to boot me, "Only Rubber-Stamps and Jellyfish Need Apply"" "Message to the remaining critics: 'Accept your powerless status and keep quiet.'"

And Joe Malchow questions the wisdom of reopening the shooting wars of the past few years just to settle scores:

This action is by any measure an egregious one. Talk about disproportionate response: for years a small entrenched band of insiders on the Board and in Parkhurst have attempted to repel a groundswell of student and alumni sentiment in favor of better management practices, smarter free speech policies, more support for the academic departments in demand, less revulsion to the notion of athletics and the Greek system, and other hale and hearty measures Dartmouth students and alumni have supported throughout the ages to ensure that Dartmouth remains true to itself. Most of the reaction to this sentiment has been ham handed: the failed constitution that would have rigged the trustee election procedures against petition candidates; the candidacy of Sandy Alderson, billed as a conservative because Parkhurst presumed that those quintessentially Dartmouth passions were nothing more than right-wingerism; and finally the abrogation of the 1891 compact that provided for a half-elected Board. Call that the nuclear option. Call the dismissal of Professor Todd Zywicki the most cowardly post-armistice blindsiding in the history of gentlemanly warfare.

Does Declining Popular Identification with State Governments Undermine the Case for Federalism?

In their important new book criticizing federalism, Malcolm Feeley and Edward Rubin argue that federalism (defined as constitutional guarantees for state autonomy) is unnecessary in the modern US in part because modern Americans no longer feel any major sense of identification with state governments. Feeley and Rubin concede that federalism might be a useful institution in societies where state boundaries coincide with major ethnic or religious divisions. For example, Canadian federalism allows the French-speaking minority to have an autonomous enclave in Quebec, where they can avoid domination by the English-speaking majority. French-speaking Quebecers identify with Quebec as much or more so than with the Canadian federal government. By contrast, Feeley and Rubin claim, most modern Americans identify as "Americans" first and foremost and have little or no loyalty to their states. I live in Virginia, but I feel no meaningful attachment to the state government in Richmond. My loyalty to the state of Massachusetts, where I grew up, is largely limited to rooting for Boston sports teams.

With a few exceptions such as Mormon identification with Utah and native Hawaiians' affiliation with Hawaii, Feeley and Rubin are largely correct in concluding that modern Americans feel little loyalty to their states. But they are wrong to claim that this undermines the case for federalism. Indeed, in one important respect it actually strengthens it. As I have discussed in various articles (e.g. here and here), one of the main benefits of federalism is interjurisdictional competition. States compete with each other to attract taxpaying workers and businesses; this competition gives them incentives to adopt good policies that will be appealing to the population, and also promotes desirable innovation in public policy. A state that makes a beneficial innovation will have a leg up on its competitors. The ability of citizens to "vote with their feet" is one of the main advantages of federalism. Obviously, foot voting is difficult or impossible in a situation where there is a unitary federal policy that applies to the whole country. In that situation, we can only vote with our feet by leaving the United States entirely.

As John McGinnis and I explained in this 2004 article, declining public identification with state governments actually increases the benefits of foot voting. A citizen who strongly identifies with Virginia might hesitate to leave even if another state is otherwise vastly more attractive due to its superior public policies. But a person who feels little or no loyalty to her state won't suffer from any such inhibitions. To the extent that modern Virginians are more willing to leave than those of 100 or 200 years ago, state governments elsewhere have stronger incentives to woo them, and Virginia's state government has stronger incentives to adopt good policies that will convince them to stay. Once we recognize the importance of voting with your feet as a major benefit of federalism, it turns out that declining loyalty to state governments actually strengthens the case for limiting the scope of federal power.

Related Posts (on one page):

  1. Does Declining Popular Identification with State Governments Undermine the Case for Federalism?
  2. Federalism vs. Decentralization:

Federalism vs. Decentralization:

Malcolm Feeley and Edward Rubin have published an important new book that expands on their previous scholarship arguing that "federalism" - defined as a constitutional guarantee of autonomy for subnational governments - is undesirable in the modern United States. For a sympathetic summary of the book's thesis, see this post by Sandy Levinson. Unlike some other critics of federalism, Feeley and Rubin are not advocates of comprehensive political centralization. Rather, they argue that all the putative benefits of federalism can be better achieved through what they call "decentralization." Even if states lack any constitutional guarantees insulating them from control by the central government, a rational central legislature can allow certain decisions to be made by the states as a matter of policy. Thus, if state officials would make certain decisions better than Washington, Congress can simply allow them to do so as a matter of policy. There is no need, Feeley and Rubin contend, for constitutional guarantees of federalism. Indeed, such guarantees are actually harmful, since they might hamstring congressional efforts to respond to changing conditions.

The major flaw in Feeley and Rubin's argument is that Congress has little or no incentive to pursue anything approaching optimal levels of decentralization. To the contrary, there is likely to be a strong tendency to expand federal power far beyond that point. Federal officials have strong incentives to expand the scope of their power, and numerous interest groups would like to impose uniform rules that prevent dissenting states from going against policies that they advocate. Some scholars argue that overcentralization can be prevented by state governments exercise of their political influence, since they can lobby Congress to limit its infringements on their powers. However, as John McGinnis and I discussed in this article, state governments themselves often have strong incentives to support overcentralization, especially if expansions of federal power are coupled with increased federal subsidies to the states. Others claim that the growth of federal power can be checked by voters, who might punish excessive centralization at the ballot box. But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively check the overexpansion of federal power.

More fundamentally, Feeley and Rubin's argument can be used to justify eliminating virtually any constitutional restraints on government power. If Congress can be trusted to rationally determine the optimal use of its own authority, then we don't need constitutionally mandated protection for speech, religion, the rights of criminal defendants, and so on. Even if there were no Fourth Amendment constitutional restrictions on the use of search and seizure, for example, a rational Congress can enact appropriate statutory limits on law enforcement authority. In reality, however, constitutional restrictions on government power are needed precisely because the government is not always trustworthy, and is prone to various systematic pathologies. Overcentralization is one of them.

Some would argue that limits on central government power have few or no benefits, and that federalism is undesirable for that reason. That is an argument for another day (or at least another post). Feeley and Rubin, with their support for "decentralization" don't fall into that camp. Unfortunately, they fail to prove that Congress can be trusted to promote decentralization without the imposition of constitutional limits on its authority.


Guns, Explosions, Fires bleg:

Suppose that a ship's crew is fighting a gun battle with pirates. A stray bullet hits a storage tank. Could that bullet ignite a fire or cause an explosion by hitting:

the fuel tank?
crude oil?
liquid natural gas?
other commodities that might be shipped by sea, and if so, which ones?
Commenters who actually know an answer, and are not guessing, will be appreciated.


The Elizabeth Pascoe Case and the Use of Eminent Domain in Britain:

The Spectator, a British conservative magazine, has an interesting article on the use of eminent domain in Britain (HT: VC reader Jonathan Falk). It describes a recent case where some 370 Victorian and Edwardian homes were condemned by the British government in order to promote "social cleansing," as it was called by a government minister. One of the homes in question was owned by Elizabeth Pascoe, a grandmother who successfully challenged the "compulsory purchase order" (the British term for eminent domain) targeting her home in a 2006 court case. The 2006 High Court ruling held that the CPO exceeded the government's statutory authority. A few weeks ago, however, the Court held that CPO is now legal, once the government revised its rationale for the taking. As the Spectator article points out, similar condemnations are becoming common in Britain. Reasonably well-maintained working class and lower-middle class homes and businesses are being condemned on the grounds that they must be removed in order to facilitate urban development.

The pattern is strikingly similar to the use of "blight" takings in the United States. What started out as an effort to condemn severely dilapidated or disease-ridden neighborhoods gradually led to condemnation laws that define "blight" so broadly that virtually any property can be condemned, including in such "blighted" locations as downtown Las Vegas and Times Square, a state of affairs I discussed in this article.

The British law at issue in the Pascoe litigation is very similar to broadly worded American blight condemnation statutes. It allows the government to condemn any land that is "under-used or ineffectively used." Obviously, almost any property can be described as "under-used" relative to some possible alternative. This gives British officials very broad, almost unlimited, authority to condemn any areas they want. Predictably, as the Spectator article suggests, such unconstrained power is often used to condemn the property of the politically weak for the benefit of well-connected interest groups. Once again, the pattern is similar to that of blight takings in the United States, which I discuss in the last Part of this article.

Unlike the United States with its Fifth Amendment Takings Clause and similar state constitutional provisions, Britain does not have a constitutional rule restricting the use of eminent domain to "public uses." Indeed, Britain famously lacks a written constitution of any kind. Under British law, property can be condemned for any purpose authorized by Parliament. For this reason, it's quite possible that the court decision upholding the CPO against Pascoe's home was legally correct. The legislation in question seems broad enough to justify the condemnation of almost any property the government might want. Indeed, Pascoe's latest legal challenge to the CPO apparently did not even try to claim that its purpose was illegal, but merely argued that the government had failed to meet certain procedural requirements.

But even if legally defensible, the Pascoe ruling reminds us that unconstrained condemnation authority is dangerous - on either side of the Atlantic.

REQUEST TO READERS: Can anyone point to a copy of the latest Pascoe decision that is available online? I would like to link to it.


Wednesday, April 15, 2009

Symposium on "Cyber Civil Rights": For the last day or so, I've been participating in a symposium over at Concurring Opinions over treating cyberbulling and Internet harassment as a civil rights issue, and on what the legal response should be if it is so classified. Check it out if you're interested in these issues.

A Lot More Generous With Other People's Money Than With His Own:

Between 1998 and 2006, Joe Biden contributed between $120 and $380 a year to charity, according to his tax returns, on AGIs of $210,000 to $321,100. Imagine if he hadn't been thinking of running for president.

[Comments are now closed]


Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion:

My article on this subject will be coming out next year in the Stanford Law Review, and I thought I'd preview it on the blog (with the journal's permission). I hope you folks find it interesting, and I'd very much like to have people's comments, criticisms, and suggestions while there is still plenty of time to work them in. Let me begin with the Introduction, with the footnotes largely omitted; for the footnotes, the Appendix listing the various statutes, ordinances, and rules that I refer to, and for the body of the paper, see here.

* * *

Owning a stun gun is a crime in seven states — Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island, and Wisconsin — plus New Orleans, Philadelphia, South Bend (Indiana), the Virgin Islands, Washington, D.C., Wilmington (Delaware), and three counties surrounding Annapolis and Baltimore. In Illinois, possessing a stun gun in a public housing project is a crime. In Akron, Ohio, 18-to-20-year-olds aren’t allowed to possess stun guns. Connecticut allows home possession of stun guns, but ban carrying them in public; North Carolina and Omaha ban concealed carrying.

Yet in all these jurisdictions, people are free to possess guns at home. In some — Connecticut, Michigan, North Carolina, New Orleans, Omaha, Philadelphia, and South Bend — pretty much any law-abiding adult over age 21 is even entitled to a license to carry a concealed handgun in public. In North Carolina, Wisconsin, and New Orleans, no laws bar any adult from carrying a gun openly even without a license.

So in those jurisdictions, killing devices are fine. But say you have religious or ethical objections to killing, or fear that you’ll be emotionally unable to pull the trigger on a gun, or don’t want to risk accidentally killing an innocent bystander, or don’t want to risk having your children get their hands on a deadly weapon. Not wanting to kill, and knowing that modern stun guns pose at most a very small risk of death, you get a stun gun instead of a handgun (something that over 130,000 civilians have apparently done). Then you’re a criminal.

In other contexts, firearms are restricted as much as stun guns are, so stun gun bans leave people unable to defend themselves either with stun guns or firearms. This is so

  • in public places in those no-stun-gun jurisdictions (such as New York) that also generally ban carrying concealed firearms;
  • on public streets in Illinois;
  • for 18-to-20-year-olds in public places in all the no-stun-gun jurisdictions, since even those jurisdictions that freely grant licenses to carry concealed firearms (such as Michigan and Pennsylvania) generally don’t grant such licenses to 18-to-20-year-olds;
  • for aliens admitted under a nonimmigrant visa in Illinois, which can include long-term residents, such as students and workers let in because of their special skills (for instance, foreign lawyers who live in the U.S. and who are allowed to work here because of their knowledge of foreign law);
  • for 18-to-20-year-olds in Illinois, even at home, if their parents refuse to give permission, if their parents are dead, if their parents are felons, or if their parents are nonimmigrant aliens;
  • for university students on Georgia and North Carolina campuses (including in their own homes in campus dorms), and on California campuses unless they have written permission from the university;
  • for people staying in Louisiana domestic violence shelters;
  • for minors, even ones old enough to use the deadly devices known as automobiles, in public places in all the no-stun-gun jurisdictions plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably San Francisco and Oakland;
  • for 16- and 17-year-old minors even at home, in Massachusetts and Minnesota;
  • for under-16-year-old minors in Hawaii, New Jersey, Annapolis, Baltimore, and New York City; and
  • for felons (even nonviolent felons) in all the no-stun-gun jurisdictions plus Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Las Vegas are barred from having access either to stun guns or firearms, which also means that people who live with felons may find it dangerous to possess either weapon.


Inserting Non-Fancy Quotation Marks in Word:

Say that you have Word configured to insert quotation marks as curly rather than just normal typewriter-like straight marks (which correspond to the ASCII quotation characters). But say that at some point you need to enter a straight quotation mark, for instance when you're entering some HTML code. What to do?

I struggled with this for years, until I accidentally discovered a trivial solution: After you type the quotation mark and it gets automatically made curly, just hit control-Z (undo), and it'll straighten out. The same seems to be the case for all the Word auto-corrections, such as (c) becoming a copyright symbol (if you have that set) and the like; hitting control-Z returns the item to being exactly what you typed.

My apologies if this is old hat to all of you, but my guess was that many people don't know about this, just as I didn't until recently. I think this is so for Word 2003 as well as Word 2007.


Montana Firearms and the Interstate Commerce Clause:

Montana's staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State of Montana, "is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce."

Further, "It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana."

For the reasons that Glenn Reynolds and I detailed in the Connecticut Law Review, I think that the Montana legislature is in line with the original understanding of the Interstate Commerce Clause, and with how the clause ought to be read today. But, obviously, that reading is not exactly a sure winner in today's courts.


Is Showing a Film With Naked Dancing and Couple Having Sex (Shown from the Waist Up) to 16-Year-Old

the Crime of "Exhibiting Harmful Matter to a Minor"? That's the question in People v. Dyke, decided last week, and the answer is "no," in the absence of more details about the movies.

The prosecution doubtless arose because the defendant (the father of a friend of the 16-year-old) tried to seduce the 16-year-old, and the defendant was indeed convicted of misdemeanor sexual battery (for stroking the 16-year-old's breast). But the court concludes that, absent more details about the movies, evidence that such movies were shown is insufficient to sustain a conviction for displaying "harmful to minors" material (basically, the same test as for obscenity but with "for minors" attached to each prong). It's a short and readable decision -- if you're interested, check it out.


Longest Oath Known to Legal History,

or at least to me, uncovered by Marc Abrahams of the Annals of Improbable Research in Kenneth R.H. MacKenzie's Burmah and the Burmese (1853) (short video here). It apparently began (paragraph breaks added):

If I speak not the truth, may it be through the influence of the laws of demerit, viz.: passion, anger, folly, pride, false opinion, hardheartedness, and scepticism; so that when I and my relations are on land, land animals, as tigers, elephants, buffaloes, poisonous serpents, scorpions, &c., shall seize, crush, and bite us, so that we shall certainly die.

Let calamities occasioned by fire, water, rulers, thieves and enemies, oppress and destroy us, till we come to utter destruction. Let me be subject to all the calamities that are within the body, and all that are without the body. May we be seized with madness, dumbness, blindness, leprosy and hydrophobia. May we be struck with thunderbolts, and lightning, and come to sudden death.

In the midst of not speaking truth, may I be taken with vomiting black clotted blood, and suddenly die before the assembled people. When I am going by water, may the water Nats assault me, the boat be upset, and the property lost; and may alligators, porpoises, sharks, or other sea monsters, seize and crush me to death; and when I change worlds, may I not arrive among men or Nats, but suffer unmixed punishment and regret in the utmost wretchedness among the four states of punishment, Hell, Prita, Beasts and Athurakai.

There's more.


Now There's an Odd Thing to See in an American Statute:

N.Y. Education Law § 5703 sets up the Cornell board of trustees, and includes — as one member out of 64 — "The eldest lineal descendant of Ezra Cornell[, who] shall be a trustee for his or her life."

Hardly outrageous, given Ezra Cornell's role in founding the university that bears its name, but still pretty odd.

UPDATE: UC Hastings Prof. Calvin Massey reports on a similar item in California:

California Education Code section 92204 stipulates that an "heir or representative" of Serranus Clinton Hastings, the founder of Hastings College of the Law, must always be a member of the Board of Directors.

My question: Heirs are easy enough, but how can you tell who counts as a "representative" of someone who is over 100 years dead?


Letters of Marque & Reprisal

Rep. Ron Paul urges that Congress use its neglected constitutional power to "grant Letters of Marque and Reprisal." Seems like a good idea to me.

Before commenting, please read the Politico article, which address various ways in the Letters might need to be updated from their 19th century predecessors. Especially welcome are comments about how well the Letters of Marque and Reprisal worked in the Early Republic, and what we can learn today from those historical experiences.


The Feeders of Bush 43: The list of OT09 Supreme Court clerks over at ATL is further confirmation that the two leading "feeders" of the Bush 43 judges are Brett Kavanaugh of the DC Circuit and Jeffrey Sutton of the Sixth Circuit, with Michael McConnell of the Tenth Circuit coming in third place.

  It will be interesting to see which other Bush 43 judges end up feeding over time. I don't know the hiring practices of the different judges, and which of them are trying to hire clerks that are viable at 1 First Street, but I would think Steve Colloton on the Eighth and Neil Gorsuch on the Tenth are judges to watch, plus perhaps Ray Kethledge on the Sixth and Debra Livingston on the Second.

  Lat's post is also interesting because he reminds me that there hasn't been any sign so far (at least that I know of) that Justice Souter has interviewed any clerks for positions that would start this summer.

Thugs Suppressing Free Speech:

From the Charlotte News & Observer:

UNC-CH police released pepper spray and threatened to use a Taser on student protesters Tuesday evening when a crowd disrupted a speech by former Colorado congressman Tom Tancredo opposing in-state tuition benefits to unauthorized immigrants.

Hundreds of protesters converged on Bingham Hall, shouting profanities and accusations of racism while Tancredo and the student who introduced him tried to speak. Minutes into the speech, a protester pounded a window of the classroom until the glass shattered, prompting Tancredo to flee and campus police to shut down the event....

About 200 protesters reconvened outside the building. "We shut him down; no racists in our town," they shouted. "Yes, racists, we will fight, we know where you sleep at night!" ...

UNC graduate student Tyler Oakley, who had organized the protest, said he regretted the broken window but not silencing Tancredo. "He was not able to practice his hate speech," said Oakley. "You have to respect the right of people to assemble and collectively speak."

Appalling. But here's an enheartening item:

But campus visitors and some faculty members in the capacity crowd of 150 urged the students to let Tancredo speak.

"We are the children of immigrants, and this concerns us," said junior Lizette Lopez, 22, vice president of the Carolina Hispanic Association. "So we would at least like to hear what he has to say if you want to hear what we have to say." ...

"We were more interested in an intellectual conversation instead of a shouting match," she said. "Ironically, the people that are trying to get our voices heard silenced us."

Thanks to InstaPundit for the pointer. Cornell Prof. William Jacobson has more, including video.


Health Reform: The Public Plan Option

Yesterday’s Wall Street Journal has an interesting piece comparing government-run and private health insurance plans. The piece is by Kerry Weems, who was, until recently, the acting administrator of the Center for Medicare and Medicaid Services (CMS) and Benjamin Sasse, a professor at the LBJ School at the University of Texas, who served as the assistant secretary for planning and evaluation in the Department of Health & Human Services. The context of the article is the proposal to create a “government-run health-insurance option, or ‘public plan,’ to compete with private health insurance.”

The Obama Administration’s case for a public plan was concisely stated by Governor (and HHS Secretary-nominee) Kathleen Sebelius in her responses to question 5 from the Senate Finance Committee.

The President wants to make health care affordable for families and businesses. We want to give Americans a choice of which health insurance option works for them. While the President discussed proposals to ensure that Americans had benefits as good as Members of Congress, his campaign plan also proposed a public option alongside private insurance options in a National Health Insurance Exchange. He recognizes the importance of giving the American people this choice, which will also challenge private insurers to compete on cost and quality, not cream-skimming and risk selection. At the same time, he recognizes the importance of a level playing field between plans and ensuring that private insurance plans are not disadvantaged.

You can get a feel for the politics of the proposal, and the competing arguments here.

Weems/Sasse sketch out the basic dispute as follows:

Some lawmakers support or oppose a government-run health-insurance option for purely ideological reasons. Others are open to it because they are pragmatic and -- laudably -- want to be persuaded by data and facts. These moderates have been much influenced by the supposed fact that a public plan such as Medicare is more efficient than commercial insurance. Advocates of the public option routinely ask, "Aren't Medicare's administrative costs a fraction of those of private insurers?"

But the comparison between public and private plans is a false comparison. Private insurance and public benefits are not the same business. For all its warts, private insurance tries to manage care. Medicare is mostly about paying the bills presented to it.

Weems/Sasse offer four reasons why the the higher administrative costs associated with private plans is “money well spent.”

First, private insurers must build provider networks. These networks can include high-value providers and exclude low-quality providers. Except for certain circumstances, including criminal acts, Medicare is forbidden from excluding poor quality providers. It lets in everyone who signs up. So one question to ask is, will the public plan have Medicare's indifference to quality -- or invest in the cost of a network?

Second, private insurers must negotiate rates. Medicare just fixes prices using a statutory and regulatory scheme. And anyone who imagines a public plan would be less costly than private plans must keep the following issue front and center: In the many procedure categories where Medicare's statutory price does not cover full provider costs, shortfalls are shifted to private payers who end up subsidizing the public program. So, will a public plan negotiate rates or simply use fiat as a means of gaining subsidies from private insurance?

Third, private insurers must combat fraud -- or go out of business. Indeed, these payers have every incentive to invest in antifraud personnel and strategies down to the point where return and investment are equal. But anyone who thinks that a public plan could serve as a "yardstick" for the private sector needs to consider Medicare's dismal record with regard to fraud, waste and other abuse.

Fourth, private insurers must incur the administrative cost of marketing. Medicare, of course, does not need to market. A public plan competing with other alternatives would have to market itself to the public, and this means tax dollars used to advertise against private plans. Or the public plan could "compete" by using heavily subsidized marketing channels not available to private insurers, such as Social Security mailings, welfare offices, unemployment check stuffers, and the constellation of government-funded "advocacy organizations."

In the next few posts, I will address each of these claims, and the broader issues raised by the proposal. To summarize, the issue is whether a public plan will be a maverick, a monopsonist, or much ado about nothing.


Schroeder Leading Candidate to Head OLP: The BLT reports:
  Christopher Schroeder, a professor at Duke University School of Law, is the leading candidate to head the Justice Department’s Office of Legal Policy, according to three sources familiar with the matter.
  Schroeder -- who teaches classes on Constitutional Law, Environmental Law, and Congress, among other topics -- has served on Capitol Hill as chief counsel to the Senate Judiciary Committee and in the Justice Department’s Office of Legal Counsel, as acting assistant attorney general during the Clinton Administration. He was also a member of President Barack Obama’s transition team.
  I don't know Chris Schroeder as well as some others here do, but from what I know he would be an excellent pick.

Reynolds on the Tea Parties; Moving Federal Elections to May.

Glenn Reynolds has a nice piece on the tax-day Tea Party protests in the Wall Street Journal:

The tea-party protest movement is organizing itself, on its own behalf. Some existing organizations, like Newt Gingrich's American Solutions and FreedomWorks, have gotten involved. But they're involved as followers and facilitators, not leaders. The leaders are appearing on their own, and reaching out to others through blogs, Facebook, chat boards and alternative media.

The protests began with bloggers in Seattle, Wash., who organized a demonstration on Feb. 16. As word of this spread, rallies in Denver and Mesa, Ariz., were quickly organized for the next day. Then came CNBC talker Rick Santelli's Feb. 19 "rant heard round the world" in which he called for a "Chicago tea party" on July Fourth. The tea-party moniker stuck, but angry taxpayers weren't willing to wait until July. Soon, tea-party protests were appearing in one city after another, drawing at first hundreds, and then thousands, to marches in cities from Orlando to Kansas City to Cincinnati.

As word spread, people got interested in picking a common date for nationwide protests, and decided on today, Tax Day, as the date. As I write this, various Web sites tracking tea parties are predicting anywhere between 300 and 500 protests at cities around the world. A Google Map tracking planned events, maintained at the Web site, shows the United States covered by red circles, with new events being added every day.

The movement grew so fast that some bloggers at the Playboy Web site — apparently unaware that we've entered the 21st century — suggested that some secret organization must be behind all of this. But, in fact, today's technology means you don't need an organization, secret or otherwise, to get organized. After considerable ridicule, the claim was withdrawn, but that hasn't stopped other media outlets from echoing it.

My colleague Steve Calabresi has often suggested that we change the date of federal elections from November to May (perhaps the first Tuesday in May), so that taxes are on voters' minds when they vote. If we continue to reduce the proportion of voters who pay income taxes, even that strategy wouldn't work.

Tuesday, April 14, 2009

Under-21-Year-Olds Banned from Possessing Any Firearms in New York City?

That seems to be so, under New York City Administrative Code § 10-303 (at least with some narrow exceptions), as interpreted by the New York Police Department. Does anyone whether there are other rules that might keep this from being the case?

Query: If the Second Amendment is incorporated against the states, can this be constitutional? As I noted with regard to a much less restrictive Illinois limit on 18-to-20-year-olds, the age of majority has indeed historically been 21 until the early 1970s, though now it's 18 virtually everywhere, including in New York.

Would the right to keep and bear arms not fully apply to under-21-year-olds, the way some constitutional rights today don't fully apply to under-18-year-olds (consider the right to sexual autonomy, the right to marry, the right to abortion, which could be limited through certain kinds of parental consent laws, and likely the right to bear arms itself)? Or does the right apply to all adult citizens — unless otherwise disqualified by reason of felony conviction or the like — under today's age of majority, regardless of what the age of majority was at the time? Or has the right always extended to everyone 18 and above, regardless of the age of majority for other purposes?

These questions would also have some importance in other states that allow long gun possession for 18-to-20-year-olds but ban handgun possession until age 21, and also as to the federal government, which makes handguns harder for under-21-year-olds to get.

Related Posts (on one page):

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

"Bait and Switch" on Treaties?

Ed Whelan at National Review Online's Bench Memos argues:

American transnationalists ... use a bait-and-switch game on “human rights” treaties. In urging that the United States adopt the treaties, they hide behind the treaty’s grand and sweeping statement of a seemingly unobjectionable principle. Focused on the supposed concerns of a hypothetical world community, they trumpet the need for the United States to make an “important global statement” and to show that “our national practices fully satisfy or exceed international standards.” Meanwhile, at the same time as the supervisory committee established by the treaty is interpreting the treaty to advance a radical agenda, American transnationalists obscure or dissemble about what the treaty committee is doing when they are speaking to the Senate and the American public — and then they turn around and use its interpretations to advance their agenda in courts.

I'm not sure of the intentions of the people involved; Whelan is criticizing Koh here, but that's not my goal with this post. But the intentions might not matter that much, because my sense is that this is indeed a potential danger, even if everyone's intentions are pure.

Whenever one is proposing adherence to a treaty, or the enactment of a statute, it's tempting to describe the proposal narrowly. Then once it's enacted, it's tempting to read this broadly. People being what they are, they fall into this temptation, and the rest of us may find the result to be a bait-and-switch even if it wasn't so intended.

And it strikes me that this is indeed a potential danger with a range of "human rights" treaties: We might indeed sign on to the text of a treaty because the text seems sensible, but then end up some years or decades later being stuck with international interpretations of the treaty that are much broader than the text suggests. To be sure, we could say "We signed on to the treaty's text, not its interpretations." But that might be a difficult argument to make, especially (1) when people are pressing us not to alienate the "international community," and (2) given that deference to judicial and even executive interpretations of domestic statutes — and not just to the statutory text — is an American legal norm.

But this is just a tentative judgment, based on my limited experience with the field. Can those of you who have more experience with these sorts of international treaties speak to this question?


[Eugene Kontorovich, guest-blogging, April 14, 2009 at 6:30pm] Trackbacks
Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option

The very pirates who terrorized the crew of the Maersk Alabama may have been caught and released by the U.S. or navies in the past year.

Given the robust military reaction to the seizure of an American vessel, most people would be surprised to learn that the response of the United States and other nations patrolling the Gulf of Aden to pirate attacks over the past year has been to either avoid arresting the pirates in the first place, or to put them back in the water once caught. Indeed, some European countries have even given pirates in broke-down boats a lift back to port. After all, international law (the UNCLOS treaty) demands solicitude for "distressed mariners."

The reason for such a strange piracy policy is that the legal obstacles to successfully prosecuting are so daunting that Western nations would rather not risk it. The title of my forthcoming essay in the California Law Review is taken from a quote from the German Foreign Minister, who explained the catch-and-release policy by saying no one wanted a "Guantanamo on the Sea."

According to news reports, the Administration is debating whether to try the captured pirate in the U.S. or to transfer him to Kenya. The U.S and Britain had made a deal with Kenya to transfer captured pirates there, so that they could be tried under universal jurisdiction. This is analogous to the rendition or third-country solution to the Guantanamo problem, and is similarly limited by Kenya’s unwillingness to be a pirate holding pen. There are numerous problems with this plan, and it is to early to judges its success, as no trial has yet finished.

Yet the current case is unique because it involves an attack on a U.S. vessel. America has jurisdiction not because of the universal status of piracy but because the attack happened on what is constructively considered its territory, involving its nationals. Much like the attacks on U.S. embassies in Kenya and Tanzania, there could be no clearer case for U.S. prosecution. Such piracy cases are quite rare because there are very few U.S. flagged commercial vessels.

Given that the bombers of the U.S. embassy in Kenya were brought here for trial - at great expense - sending this pirate to Kenya, with which he has no connection, would be a great admission of defeat for the U.S. legal system. It would be particularly ironic at a time when Guantanamo terrorists are being transferred for to U.S. civilian courts for trial.

The fact that the Administration is entertaining the possibility of deferring this prosecution to Kenya seems to confirm my view that the no one has any appetite for such cases because of their difficulty. Yet even I am surprised that Kenya is entertained as a possibility here. It is one thing to be deterred by high costs when the case does not involve ones own nationals – there, the direct benefits are low. But here, it is hard to imagine the Attorney General passing on such a case. Indeed, France and Holland have brought pirates that attacked their vessels for trial in their domestic court.

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say – like many captured Guantanamo detainees – that he knew nothing of his shipmates plan; he thought they were just going fishing. In the few cases that have already begun in Kenya, pirates have claimed they have been tortured, and that their Islamic rites have been disrespected. With a good U.S. defense attorney, a pirate brought to America could really refine this pitch. (The forthcoming essay discusses these and other difficulties at much greater length).

In any case, where will one find a lawyer or translators who speak the defendant’s Somali dialect? Will the officers of the U.S.S. Bainbridge, the crew of the Alabama, and the Navy SEALS have to be brought in as witnesses? If so, it will interfere both with the policing of the seas and the Alabama’s mission of providing relief supplies.

NOTE: I will not be able to respond to posts or emails until Thursday night.

Related Posts (on one page):

  1. Somali Pirate in New York on Tuesday
  2. Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option

Judge Boyce Martin Makes Another Case Against the Death Penalty: See his concurring opinion here. Notably, Judge Martin does not frame his opposition to capital punishment as a matter of constitutional law, as he has done before. Rather, in this case he expresses his view that "our scarce public resources can be put to better use" as a matter of policy, and that he believes states legislatures should not authorize the death penalty on the basis of the death penalty's high cost alone. (Hat tip: Doug Berman)

[Eugene Kontorovich, guest-blogging, April 14, 2009 at 4:44pm] Trackbacks
Why Crews Don't Resist

In answer to Dave Kopel's bleg below, there are as far as I am aware no international legal restrictions to crews resisting pirates. A ship is governed by the laws of the flag state, and the relevant regulations would come from there.

However, the crew has no incentive to resist. The crews are not military personnel. They are just working on a ship for a living, and not getting paid much. They would not risk their lives to save the insurers/owners some money. This is exactly what pirates bank on. In the age of sail this was also the case: merchant crews almost never resisted, and thus there was little occasion for the pirates to be violent.

Nor do shipowners want their crews to resist. Shooting could result in the loss of the ship, a massive financial blow. The payments to pirates are minor in the big scheme of things (in comparison) and more easily dealt with on an actuarial basis. My understanding is that insurers insist crews be unarmed.

The resistance by the crew of the Alabama was extraordinary and unusual. I would love to know why they did it. It may be linked to the vessel being a government-chartered ship; this voyage was not about making money. Or maybe its that Southern spirit.


[Eugene Kontorovich, guest-blogging, April 14, 2009 at 3:55pm] Trackbacks
Piracy Blogging

In my essay, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 California L. Rev. __ (forthcoming, Feb. 2010), I discuss why both legal and military responses to piracy are failing, despite the avowed commitment of all leading nations to deal with the problem, and the massive naval forces devoted to it. The following is adapted from the introduction; at the end of the post, I will say a few words about the direction of subsequent posts.

The unprecedented epidemic of piracy that broke out in the Gulf of Aden last summer lead to a response that at first appears to be the model of international cooperation. An unprecedented naval force from over twenty powerful nations has assembled in the Gulf of Aden. The U.N. Security Council has acted with unusual vigor, unanimously authorizing the use force against pirates even in sovereign Somali territory. This could be seen as a high point for a new international legal order.

Yet the international response to piracy has by all accounts turned out to be a dismal failure. The countries policing the Gulf of Aden refuse to attack or arrest pirates. As the National Security Council put it a few months ago, “Somali-based piracy is flourishing because it is . . . nearly consequence-free.”

Whatever the difficulties of catching pirates, diplomatic and military officials make clear that prosecuting them is even more daunting. This is supremely ironic: piracy is the paradigmatic and oldest of international crimes, and one of the few offenses which international law requires nations to take active measures to suppress. However, a variety of second-order international legal rules, norms, and expectations that pull in the opposite direction have completely frustrated the effort. International rules make detention and prosecution so costly that even the most powerful nations prefer to let the criminals go free, leaving them to continue looting the one-third of world trade that passes through the Gulf of Aden.

Many of the legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. Pirates are fighters in some sense, but they are not state actors or guerrillas as traditionally defined. Thus the “War on Piracy” and the “War on Terror” both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates’ prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of “targeted killings” of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in the just first few months of the recent Somali campaign.

The legal obstacles come from international humanitarian law, including the Geneva Conventions, a variety of human rights treaties, international refugee law, the U.N. Convention on the Law of the Sea, and other sources. None of these measures were designed to obstruct anti-piracy efforts. Indeed, all were promulgated with no thought about piracy whatsoever. But the growth of international legal norms that limit state authority and provide greater protections for individuals have the combined effect of preventing nations from performing the oldest and perhaps most basic law enforcement function in international law: preventing piracy.

The current failure of the piracy campaign offers lessons about one of the most prominent and contentious issues of the day: the most appropriate legal ordinary criminal process or some adaptation of it can effectively deal with alleged terrorists captured abroad. The Obama Administration plans to replace the military commission proceedings at Guantánamo with trials in civilian courts. The failure of an identical scheme in the battle against piracy has important implications for those plans. The refusal of countries involved in the anti-piracy campaign to even attempt prosecution suggests that the legal issues pose daunting and perhaps insurmountable challenges. In short, problems with modern piracy suggest that the criminal approach to suspected terror detainees may prove quite difficult.


Subsequent posts will look at the possibility of trying the pirate captured this week in Kenya, as well as some specific difficulties raised by trying pirates, difficulties I suspect the Justice and State Departments are wrestling with right now.

The problems of the piracy campaign also have broader lessons about universal jurisdiction and the over state of public international law today, issues which I hope to explore at the end of this series of posts.

NOTE: I will not be responding to posts or emails from Tuesday to Thursday night due to the Passover holiday, though I will still be posting through an automated feature.


Eugene Kontorovich, Guest-Blogging on Prosecuting Pirates and Terrorists:

I'm delighted to report that Prof. Eugene Kontorovich (Northwestern Law School) will be guest-blogging for the next several days about prosecuting pirates and terrorists. Here's his quick summary of his plans:

Many of the issues about the legal regime for responding to and prosecuting pirates that have arisen in the wake of the capture of a U.S. vessel this week are discussed at length in my forthcoming scholarly essay entitled “A Guantanamo on the Sea": The Difficulties of Prosecuting Pirates and Terrorists, to be published in volume 98 of the California Law Review. I wrote it several months ago, before the piracy problem had attracted major attention, but due to the slow production schedules of law reviews, it won't be published for some time, so I thought it would be appropriate to share the central ideas informally now. (For background on the issue, one can consult a short briefing paper I wrote for the American Society of International Law, International Legal Responses to Piracy off the Coast of Somalia.)

The essay explains the legal and practical difficulties to taking both military and criminal approaches to the piracy problem. Because pirates are not combatants but rather civilians -– yet civilians operating in a highly organized armed manner outside the control of any country -– international law and the criminal procedure rights of Western countries make any solution challenging. The Article’s principal contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything, prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms.

(The difficulties of prosecuting pirates are illustrated in a recent Ninth Circuit case last year -– the first universal jurisdiction piracy case decided by America in hundreds of years, and the subject of a short piece of mine forthcoming in the American Journal of International Law. The little noticed case also demonstrates the difficulties involved: The entire crew had to be detained on material witness warrants, translators found for everybody, and more.)

I write on public law generally, including constitutional and public international law. Because of my interest in jurisdiction, I have been studying piracy since the beginning of my scholarly career. Piracy is the first and paradigm universal jurisdiction crime -– one that can be punished by any nation, even without a nexus to the offense. Given the rise in universal jurisdiction over human rights offenses, studying how it worked for hundreds of years in the context of piracy could teach a great deal about modern universal jurisdiction, as I’ve shown in The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation and other articles. I have also followed the current piracy problem closely since it began in 2005, for an ongoing project empirically analyzing universal jurisdiction to see how often nations are willing to exercise it. Unfortunately, this area of knowledge has become too relevant as of late.

I'm much looking forward to seeing the other Eugene's posts.


Colorado Tea Party information:

Contact information for some of the April 15 Tea Parties on the Colorado Front Range is here, on the website of the Colorado Union of Taxpayers (of which I am a member of the Board of Directors). Note that this is a non-exclusive list; I believe that there are also Tea Parties in Grand Junction and Colorado Springs.

As you will see, the state legislature's Republican Study Committee is climbing aboard the Tea Party bandwagon. The RSC chair, Senator Kevin Lundberg, has a strong record on taxpayer issues, compiling the 3d-best rating of any Representative in 2008.



My post on defamacasts and graffitism reminded me of bottomry -- not nearly as uncommon a legal term (150,000+ Google hits reported), but still one that I expect many people don't know.


Good Collective Term for Pepper Spray, Mace, Tear Gas, and Similar Personal Weapons:

For my article on nonlethal weapons, I'd like to come up with a good collective term for such devices. "Defensive sprays" seems to stack the deck in favor of my conclusion that the devices should be allowed, since it assumes that they are defensive -- of course, they can be used offensively. "Personal chemical weapons" sounds too ominous, because of the link to the deadly chemical weapons. "Nonlethal chemical weapons" is possible but sounds too abstract, and again too linked to chemical weapons in the military sense. (I realize that such sprays could be lethal, but punches could be lethal, too; as best I can tell, the sprays are lethal only in a tiny fraction of all uses, comparably to other weapons, such as fists, that aren't treated as deadly force.)

My tentative thinking so far is "irritant sprays," but again that seems a bit abstract. I also thought of using "pepper spray," which is more concrete, more commonly heard, and thus more quickly grasped by readers, and defining it at the outset to include the other kinds of sprays; but I prefer to avoid such literally inaccurate definitions, even if I make the literal meaning clear at the outset. So if you have some suggestions, I'd be much obliged. Thanks!


Allowing People to Travel to Visit Family Members in Cuba:

Some people have questioned whether the Obama Administration's proposal to "Lift all restrictions on transactions related to the travel of family members to Cuba" or "Remove restrictions on remittances to family members in Cuba" would be unconstitutional discrimination based on ethnicity in favor of Cuban-Americans. I don't think so (though of course it would depend on the precise text of the rule, which to my knowledge hasn't yet been set forth).

The rule wouldn't distinguish people of Cuban ethnicity (whatever precisely that might be) from people of other ethnicities. Rather, it distinguishes people on whether they have family members in Cuba. If two German Jewish brothers left Europe before World War II, and one came to the U.S. and another to Cuba, the children of one would be able to visiting the children of the other.

To be sure, the overwhelming majority of the beneficiaries of the law will be Cuban-Americans, in the sense of people who came from Cuba or whose own ancestors came from Cuba. That's what is called in the law a "disparate impact" on Cuban-Americans, here in their favor.

But such a disparate impact doesn't make for unconstitutional discrimination. That, after all, is why the current policy of sharply restricting visits to Cuba isn't unconstitutional discrimination -- it doesn't distinguish Cuban-Americans on the grounds of their ethnicity, though it has a much greater impact on Cuban-Americans than on others. Under the current policy, most people are free to visit their relatives (since their relatives aren't in Cuba), but most Cuban-Americans are much constrained in their ability to visit their relatives (since their relatives are indeed in Cuba). That's not presumptively unconstitutional discrimination because it doesn't facially discriminate based on ethnicity, and isn't intended to so discriminate. The same is true of the proposed relaxation of the travel restrictions.

This also helps explain why there's little reason to think that this facially ethnicity-neutral distinction (do you have a relative in Cuba?) is intended to discriminate in favor of Cuban-Americans because of their ethnicity. (As I suggested above, intentional ethnic discrimination is generally treated by U.S. constitutional law as tantamount to facial ethnic discrimination, and not just to disparate impact.) The proposed change seems intended to do precisely what it facially does -- to let people visit their families, something that the rest of us can generally do without U.S.-imposed restrictions.

So while I can't speak to the wisdom of the proposal, I don't see any constitutional problem with it, or any ethical problem that is related to any supposed ethnic discrimination.


Piracy bleg:

The VC discussions on anti-piracy policy in the last several days have raised the question of whether it would be a good idea for crews to be armed to resist the pirates. I invite commenters to supply specific answers to any of the following questions:

1. Which particular ports have rules against entry by a ship with firearms on board? Do these rules apply in territorial waters, so that a ship would not be allowed to enter a nation's waters while carrying firearms, and then transfer the firearms to a storage ship before proceeding into port?

2. Which specific shipping companies or maritime organizations have rules forbidding sailors to possess defensive arms? Are their other rules which generally forbid or restrict resistance to hijackers?

3. Which international laws, if any, might restrict or prohibit armed resistance to pirates? Does the legal analysis change if the pirates have a credible and well-known policy of not killing their captives?

3.5. What about the Law of the Sea Treaty, particularly articles 107 and 110?

4. What is the historical record about armed resistance to piracy by commercial ships?

5. In the past, when some arms have been allowed on ships, what kind of policies have been adopted to prevent mutinies or other misuse of arms? For example, having the guns locked in storage, with the only key in the possession of the captain? Were these policies generally successful?

Laws regarding military ships owned by a government are different; I am not asking about such ships. Only about ships engaged in commerce, or other non-government ships, such as private yachts.


Kmiec on Dawn Johnsen:

Former OLC head Douglas Kmiec argues in the Legal Times that Senate Republicans should not obstruct the confirmation of Dawn Johnsen to be head of the Office of Legal Counsel at the Justice Department. I agree. He writes:

Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.

Under proper supervision, the OLC is a vital internal check upon executive overreaching, a faithful defender of constitutional principle, and a reliable interpreter of congressional intent. Many notable legal figures have served as head of the office, including Nicholas Katzenbach, Malcolm Wilkey, Theodore Olson, Walter Dellinger III, Justice Antonin Scalia, and the late Chief Justice William Rehnquist.

Sen. John Cornyn (R-Texas) properly insists that the next OLC chief must be of the “requisite seriousness.” Johnsen is. She understands the fundamental difference between academic commentary and giving legal opinion on behalf of the United States. That she has sharply criticized some conservative policy is no more relevant to her ability than if she liked outré modern art and displayed it in her living room. Indeed, as a former OLC deputy (during the Clinton administration) and a respected scholar of the executive, she has a uniquely well-informed understanding of the OLC’s role as honest broker. For this reason alone, she merits the Senate’s approval.

UPDATE: In the comments below, a reader asks: "Do you think that Dawn Johnsen would make a good head of the OLC? Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)" Taking the second question first, I certainly believe that a President should receive wide latitude in filling out his Administration. As for the first question, the short and honest answer is that I don't know, but I suspect that some Republicans have been too quick to attack her based upon her public comments critical of the Bush Administration. While she would not have been my choice, I don't think that's the relevant standard.

The biggest knock on Johnsen seems to be that she was too critical of the Bush Administration and, in particular, seemingly dismissive of the national security concerns that prompted some Bush Administration decisions. But I hardly think a handful of blog postings or casual remarks are the best measure of a nominee. Just because Johnsen has made pointed and partisan comments in the past does not mean she she would be incapable of faithfully performing her responsibilities at OLC. Indeed, we've seen reasonably "partisan" figures (e.g. Ted Olson) perform quite admirably and independently within the Justice Department, their prior partisan affiliations or strong political views notwithstanding.

Given the extent to which Johnsen has written about the importance of distinguishing the advisory role of an OLC attorney from the advocacy role attorneys often play, I would expect her to be attentive to this distinction if/when she is confirmed. Might she reverse some Bush Administration positions? Of course, but so will any Obama nominee to OLC. I do not know Johnsen personally, but I have spoken with attorneys who are familiar with her work at OLC during the Clinton Administration who believe she understands the importance of maintaining OLC independence and resisting political pressures. So while I think it is perfectly reasonable for Republican Senators to ask her probing questions about her views of various issues and her understanding of OLC's responsibilities, I do not see any reason to oppose her confirmation.

SECOND UPDATE: Glenn Reynolds chimes in:

Some people don’t like Dawn Johnsen because she’s a liberal feminist. Okay, fine — if you’re President, you don’t have to name somebody like that to the Office of Legal Counsel. But the chance that Obama will name someone who’s to the right of Dawn Johnsen is relatively low, so if you succeed in knocking her off, you’ll still get a lefty. Just a different one.

What kind of different one? Well, Johnsen has spent years arguing for openness and independence in the OLC. In that position, she’s likely to try to live up to those arguments, both because she believes them, and because she knows that people will be watching to see if she can live up to the standards she set out. This will probably constrain her, and by extension, Obama, to a degree that won’t apply if you succeed in knocking her off and she’s replaced by someone more in the mold of Eric Holder or Rahm Emanuel. This would seem to me to be a feature, not a bug. But hey, if you disagree, by all means oppose her confirmation. Just don’t complain when someone more pliable gets named instead.


NYT: The ABA Is Not Liberal Enough:

The NYT has a truly remarkable editorial today. In response to recent research finding a slight ideological bias in the ABA's evaluation of judicial nominees, the Times in effect argues that, if anything, the ABA judicial selection evaluations have not been liberal enough.

a new study suggests that [the ABA] may have a liberal bias. There is little support for this claim. Indeed, there are signs that the group has been cowed by conservative critics in recent years into approving less-than-qualified nominees. The A.B.A. needs to ensure that its evaluators make assessments based on the nominees’ merits, not on political pressure. . . .

Rather than being a result of bias, this disparity may reflect the degree to which recent Republican presidents put ideology ahead of excellence in selecting judges. Based on the last eight years, it is especially hard to argue that the A.B.A. has been a liberal force on judicial selection. The group regularly gave “well qualified” and “qualified” ratings to some of President George W. Bush’s most deeply flawed nominees.

So who are these "less-than-qualified" and "most deeply flawed nominees" that received unduly favorable ABA evaluations? The NYT cites only one: Leslie Southwick, and it hardly supports their case.

The ABA gave Southwick a unanimous "well-qualified" rating when President Bush nominated him to the U.S. Court of Appeals for the Fifth Circuit (for which Southwick was eventually confirmed, 59-38). Given Southwick's extensive experience -- a stint at DoJ and over a decade on a state appellate court -- the high rating was understandable. Why does the NYT think Southwick was one of Bush's "most deeply flawed nominees"? Because of two cases in which he joined objectionable majority opinions -- two out of the over 7,000 in which Southwick participated as a judge. Even assuming Southwick was wrong in those two cases -- and the NYT makes no effort to describe the legal issues and arguments in the two cases -- two erroneous decisions in over a decade hardly makes a judge "less-than qualified" (something my conservative friends may want to keep in mind when it comes to Obama nominees with extensive lower or state court experience).

The NYT editorial closes calling on the ABA to "evaluate the Obama nominees based on their qualifications, judicial temperament and views of the law — without imposing any ideological litmus tests." If only the NYT were capable of evaluating judicial nominees in the same way.

Related Posts (on one page):

  1. NYT: The ABA Is Not Liberal Enough:
  2. "Bias at the Bar":
  3. Explaining Alleged ABA Bias:

Scrappleface--"Obama requires tea party protests to use government-funded leaf":



Statement on Dartmouth Board Action:

Last week, a majority of the Dartmouth Board denied me a second term as a Trustee. I'm disappointed, but I can't say I'm surprised.

I've posted an open letter discussing the Board's action here.

Should Have Checked With Their Lawyers:

Kotaku reports:

Electronic Arts today contacted game writers around the country asking them to return the brass knuckles they were sent as part of a promotion for Godfather II....

Brass knuckles or metallic knuckles are illegal in many of the states that they were shipped to. They're also illegal in California, where EA is based....

UPDATE: After a little research we found that according to California Penal Code even shipping brass knuckles [back to the sender -EV] may be illegal.

Uh oh. Thanks to Eric Horbey for the pointer.


NCAA Meets Facebook:

From the Associated Press:

Taylor Moseley, a North Carolina State freshman who expressed a common-enough opinion on campus when he started the Facebook group called "John Wall PLEASE come to NC STATE!!!!"

More than 700 people signed up for the group encouraging Wall — a local standout and the nation's No. 1 basketball recruit — to pick the Wolfpack by national signing day next week.

But the NCAA says such sites, and dozens more like them wooing Wall and other top recruits, violate its rules. More than just cheerleading boards, the NCAA says the sites are an attempt to influence the college choice of a recruit.

Moseley got a cease and desist letter from N.C. State's compliance director, Michelle Lee, warning of "further action" if he failed to comply. In an interview Friday, Lee said that people who act as boosters but fail to follow recruiting guidelines could face penalties such as being denied tickets or even being formally "disassociated" from the athletic program.

Adam Kissel, director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education, said the NCAA can impose rules on its member colleges. But universities -— especially public ones -— can't enforce them if it means punishing students in any way for expressing an opinion.

"A student doesn't lose First Amendment rights because of a contract the university signs with (the NCAA)," he said....

I'm with Kissel (and Aden Fine of the ACLU, also quoted) on this.

Thanks to Ben Riley for the pointer.


Forward vs. Foreword:

I just noticed that "foreword" is surprisingly often miswritten "forward," even in cite-checked and edited law review articles.

One data point: The Harvard Law Review's yearly Supreme Court issue contains "Foreword" articles, which are almost always by top legal scholars and often end up being heavily cited. They are also generally labeled "The Supreme Court, [year] Term: Foreword -- [Title]." Searching for "Term Foreword" pre/20 "Harv. L. Rev." and date(> 1/1/2000) through the LAWREV;ALLREV file in Lexis reveals 1795 citing articles. But running the same search for "Term Forward" ... reveals 179, with virtually no false positives. That's a much higher error rate than I would have expected.

Of course, one day "forward" might become common enough to be a perfectly acceptable synonym for "foreword." (I hope not, but it might happen; many perfectly acceptable words today were once errors.) But this day hasn't yet come, and certainly the dictionaries don't suggest that it has come. Plus in any event, when you're citing a document with "Foreword" in its title, "Foreword" is what you should use. So be careful out there.


Piracy and Al Qaida.

We all knew that President Obama, like President Bush, would have to defend Americans from a ruthless foreign organization—actually, a cluster of similarly motivated foreign organizations—that takes advantage of the chaotic conditions of failed states to hide and regroup, and that therefore cannot easily be handled with ordinary criminal process. We just didn’t realize this group would consist of Somali pirates rather than Islamist terrorists. It is eerie testimony to the unpredictability of events, yet there is an underlying theme: the dangers posed by the confluence of three trends—the advance of crossborder economic activity, the improvement of weaponry, and the disintegration of states.

There are differences, of course, but these are less significant than they first appear. Al Qaida is (was?) more dangerous, but that could end. Al Qaida is a terrorist group that seeks political ends; the Somali pirates are robbers who seek profits. Legally, this distinction matters, but only at the retail level. Laws against terrorist financing prohibit ransom-paying to terrorists, not to (profit-making) kidnappers, and, for similar reasons, you’re less likely to get in trouble if you donate money to the pirates (in case you sympathize with their plight, as many people apparently do) than if you donate money to Al Qaida. But the distinctions blur. Revolutionary and other politically motivated organizations have often resorted to common crime to finance their operations, and criminal organizations often adopt political causes to spread their appeal. If the Somali pirates hire a PR firm and announce an intention to form a revolutionary government dedicated to the oppressed and firmly opposed to American empire, and finance some nursery schools from the ransom money, soon Noam Chomsky will be on their side. Yes, they will be terrorists under the law, but they will also be an oppressed group with legitimate grievances that appeal to anyone who rejects the existing order.

The Obama administration has not repudiated the Bush-era theory that members of Al Qaida may be detained indefinitely with minimal process, as enemy combatants in fact if not in name. And it has enthusiastically carried on the Bush-era practice of blasting them to pieces when they appear on the “battlefield.” Yet it would be awkward, to say the least, to apply these precedents to the pirates, even though it would be easy enough to classify them as a nonstate entity with which the United States is at war. (Congress would surely supply an AUMF if that is necessary.) Obama has, in word if not in deed, repudiated these Bush-era practices. But there seems to be little effective alternative.

All the old problems pop up in new form. Criminal trials of pirates in the United States are likely to be expensive and impractical. The current detainee, caught red-handed, may not pose much of a challenge (putting aside the awkward question of whether he is a juvenile). But imagine what would happen if the U.S. detained pirates in the act of attacking a ship from Malaysia: the crew, the only witnesses, are not going to travel to district court in New York City, and the sailors involved in the detention will be on the other side of the world. If the U.S. is actually to make headway with the pirates, it will have to detain hundreds or thousands of people, not just a few. This would overwhelm American logistical capacities, not to mention those of the Kenyan courts, a twelfth-best option that has been explored but that is costly and raises the same set of problems for crews who do not live in the area. (The Somali justice system is not considered a serious option.) And any serious effort would mean shooting to kill long before the type of imminent threat that is necessary under domestic and international criminal law involving civilian suspects. Of course, none of this would solve the problem; it would at best reduce the risks to shipping by a small amount. Soon nation-building in Somalia will appear the only viable option as it has in Afghanistan. History has never before repeated itself so quickly.

People talk now of an international court. Perhaps, such a court will be constructed on a platform that floats along the currents of the Gulf of Aden. The important thing to see is that the purpose of an international court would be to compromise the due process protections that the pirates would otherwise receive. If it instead hews to western standards, and provides lawyers, translators, and security in a chaotic environment, and demands that transient crew members from all over the world appear and testify, then this court will be like all international criminal courts—an unbelievably cumbersome and expensive monument to the fear of action.

So we will have the closest thing to a controlled experiment that one can ever have for such matters—two administrations, two parties, one type of problem. Will the Obama administration swallow its pride and pursue the military option that has apparently addressed the Al Qaida threat for the time being? Or will it pursue a criminal law enforcement strategy more in line with prevailing rhetoric? Much depends on how strong the pirates become, and how quickly. One suspects that, like the Bush administration, Obama will use military and law enforcement approaches as needed, but, unlike Bush, will avoid warlike rhetoric, and sing the reassuring but uninspiring poetry of legal process.


Monday, April 13, 2009

Coleman / Franken Election Dispute:

Rick Hasen (Election Law Blog) on the ruling just handed down in Franken's favor.


Rosen on Koh and International Norms:

Via this post by Professor Bainbridge, I happened upon the following passage from a 2004 Jeffrey Rosen article in The New Republic, "Supreme Mistake" (11/8/2004):

The willingness of liberal justices to consult international norms in constitutional cases has become a rallying cry for social conservatives: Bork's most recent book is called Coercing Virtue: The Worldwide Rule of Judges. But, although Bork's book is a slapdash polemic, other, more thoughtful conservative scholars, such as Jack Goldsmith of Harvard Law School, have argued persuasively that too much attention to international law could thwart U.S. constitutional traditions and reignite a domestic culture war. There are, after all, dramatic legal and cultural differences between European and American views about free expression, privacy, and due process. This means that, if judges become too willing to look to Europe, they may impose values on U.S. legislatures that the American public will be moved to resist. Moreover, there is nothing inherently progressive about European views on these contested issues: If U.S. courts looked to Europe in abortion cases, for example, they would allow more restrictions than Americans now tolerate.

Breyer and Ginsburg have been appropriately cautious in invoking international norms, citing them only as additional evidence of a consensus in cases where a clear majority of states have also rejected a controversial practice, such as sodomy laws or the juvenile death penalty. But it's possible that younger justices of a more internationalist bent might be more aggressive about invoking a purported international consensus to strike down practices that a majority of the American public continues to support--such as the death penalty for adults. For example, Dean Harold Koh of Yale Law School, mentioned as a possible Kerry Supreme Court nominee, has supported the idea that U.S. courts should expansively apply international legal precedents without the authorization of the president and Congress. And some justices have begun to invoke international law in areas where there is intense social disagreement, such as affirmative action. If anything could reignite the culture wars, it would be a decision by the U.S. Supreme Court to thwart deeply felt currents in American public opinion in the name of the international community. Given Kerry's emphasis on international opinion in his campaign, there's no reason to expect him to be attuned to this danger.


Fourth Amendment Seizures of Computer Data: I have just posted a draft of a forthcoming essay, Fourth Amendment Seizures of Computer Data, forthcoming in the Yale Law Journal.

  Here's the abstract:
What does it mean to "seize" computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This essay argues that copying data "seizes" it under the Fourth Amendment when copying occurs without human observation and interrupts the course of its possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying that function to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.
  Also, here's the end of the introduction:
Finally, this essay offers a correction of some of my prior work. In a 2005 article published in the Harvard Law Review, I concluded somewhat uncomfortably that copying should never be considered a Fourth Amendment seizure. At the time, I was influenced by the cases holding that photographing and writing down numbers were not a seizure, as well as by what seemed to be considerable practical problems with calling all copying a seizure. I now see I was wrong. A middle ground is not only possible but also most consistent with both the cases and common sense. This essay identifies the new middle ground and explains why I now disavow my earlier approach.
As always, comments welcome.

Free Speech Threatened in the "Free World":

In yesterday's Washington Post Orin's colleague Jonathan Turley wrote about the decline of freedom of expression throughout the West.

Ever since 2006, when Muslims worldwide rioted over newspaper cartoons picturing the prophet Muhammad, Western countries, too, have been prosecuting more individuals for criticizing religion. The "Free World," it appears, may be losing faith in free speech.

Among the new blasphemers is legendary French actress Brigitte Bardot, who was convicted last June of "inciting religious hatred" for a letter she wrote in 2006 to then-Interior Minister Nicolas Sarkozy, saying that Muslims were ruining France. It was her fourth criminal citation for expressing intolerant views of Muslims and homosexuals. Other Western countries, including Canada and Britain, are also cracking down on religious critics.

Among other things, there are serious efforts to get the United Nations to pass a "ban" on religious defamation, and many western nations once protective of free speech have begun prosecuting the expression of anti-religious and bigoted speech.

History has shown that once governments begin to police speech, they find ever more of it to combat. Countries such as Canada, England and France have prosecuted speakers and journalists for criticizing homosexuals and other groups. It's the ultimate irony: free speech curtailed for the sake of a pluralistic society. . . .

Not only does this trend threaten free speech, freedom of association and a free press, it even undermines free exercise of religion. Challenging the beliefs of other faiths can be part of that exercise. Countries such as Saudi Arabia don't prosecute blasphemers to protect the exercise of all religions but to protect one religion.

Religious orthodoxy has always lived in tension with free speech. Yet Western ideals are based on the premise that free speech contains its own protection: Good speech ultimately prevails over bad. There's no blasphemy among free nations, only orthodoxy and those who seek to challenge it.


Discretion, the Rule of Law, and Political Ideology: Last week, I posted the facts of the Third Circuit's en banc decision in Pierre v. Attorney General and asked readers to chime in with what they would do if they were judges. Recall that this was the case with the inmate who was to be deported to Haiti where he would likely starve to death for lack of medical attention. The legal question was whether this amounted to "torture" given the requirement that torture must be an intentional act.

  The results were quite interesting in light of the political breakdown of the respondents. Among readers who self-identify as politically right of center, 73% would vote that Pierre must go. Among readers who self-identified as neither conservative nor liberal, 68% would vote that Pierre must go. On the other hand, there was a very different trend among readers who identified as politically left of center: Among those readers, only 35% would vote that Pierre must go. (There were 1,563 votes altogether, with 738 from right-of-center readers, 429 from left-of-center readers, and 396 from "other".)

  Why these differences? Surely one reason was that both the facts and the legal questions had a certain political valence. Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide. On the other hand, political liberals would be more likely to think of John Yoo's memos and debates on the meaning of torture, if not capital punishment more broadly (which liberals oppose twice as frequently as conservatives). So there was clearly some political valence in the case that could explain the differences.

  At the same time, I think there is a second reason: There are recognizable differences between how liberals and conservatives today tend to talk about and think about the role of the judges. Of course, I'm painting with a super broad brush here, and the broad brush can't capture a lot of nuance. But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law. In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.

  To some extent, this isn't news. Recall the Rasmussen poll last fall that asked voters "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" The differences between Obama voters and McCain voters were stark: 82% of McCain voters thought the Supreme Court should follow the written Constitution and legal precedents, while only 29% of Obama voters thought so. In contrast, 11% of McCain voters thought the Supreme Court should follow the Justices' sense of fairnesss, while 49% of Obama voters thought they should.

  I suspect we're seeing some of that dynamic in the reader poll in the Pierre case. In the case of Pierre, I think the mindset of following the law tends to lead to a pretty clear result that courts should not interfere with his deportation. The regulation required intent, and Pierre didn't claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death. Rather, he made a claim as to the likelihood of an event, arguing that what he subjectively would likely experience would be pain equivalent to what a person would experience if intentionally tortured. It seems to me that this just isn't enough under the law; indeed, the en banc Third Circuit voted unanimously not to intervene.


"Natural Substances":

Nev. Rev. Stats. § 202.380 bars felons from possessing "tear gas," defined in § 202.370 as:

all liquid, gaseous or solid substances intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air. The term does not include a liquid, gaseous or solid substance whose active ingredient is composed of natural substances or products derived from natural substances which cause no permanent injury through being vaporized or otherwise dispersed in the air.

My question: How exactly should courts interpret the phrase "composed of natural substances or products derived from natural substances" mean here? In a sense, isn't everything composed of products derived from natural substances?


Justice Ginsburg, the Holocaust, and Judicial Review:

In a recent speech justifying citation of foreign law, Justice Ruth Bader Ginsburg claims that judicial review spread in Europe because of the experience of the Holocaust:

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Ginsburg's argument is extremely dubious. As co-blogger David Bernstein points out, there is little if any evidence that the Holocaust influenced the adoption of judicial review in Europe. Some European democracies already had judicial review even before World War II. And the Holocaust was not carried out by "popularly elected representatives," but by a Nazi dictatorship. German public opinion in the 1930s was highly anti-Semitic; but there is no reason to believe that a Holocaust would have occurred absent the rise of a nondemocratic totalitarian state. Indeed, German Jews enjoyed legal equality under the democratic government of the Weimar Republic (though there was of course a great deal of informal public and private discrimination against them). Democracy has many serious flaws, some of which I have analyzed in my own scholarship. Indeed, I am probably much more skeptical about democracy overall than Justice Ginsburg is. But no democratic government has ever committed mass murder or genocide against its own citizens.

Perhaps Justice Ginsburg merely meant to say that judicial review was needed to prevent democracy from being replaced by a dictatorship, which in turn could go on to commit atrocities similar to the Holocaust. Some 1930s and post-World War II Europeans surely did see judicial review as a possible obstacle to the rise of authoritarian political movements. However, the Weimar Republic actually did have judicial review. Yet German judges did little to prevent the Nazis from taking over. Indeed, many of the judges supported parts of the Nazi agenda and collaborated with the Nazi regime when it came to power. This doesn't prove that robust judicial review is undesirable. But it does suggest that the rationale for judicial review can't be based on its supposed ability to prevent future Holocausts.



Seen in the Salt Lake County Code of Ordinances, § 10-64-010, as well as in several other Utah local codes:

It is unlawful for any person to discharge any firearm, gun, sparrow gun, flipper or similar contrivance within the limits of the county except in a careful and prudent manner, and in such designated area as the council shall by proclamation appoint.

What in blazes is a "flipper," in the sense used here?


Legal Word That's Most Uncommon in Ordinary Language:

My favorite is still defamacast, with only 289 Google hits reported (though the reported number becomes only 60 if one actually pages through the results). The word isn't that common in law, either — it's just a Georgia term — but what I like about it is that it purports to be just a normal English word, albeit one coined by Georgia courts. It's not some Latin phrase, or all-caps statutory abbreviation or agency identifiers, or some such. It looks like a word, but a highly uncommon one.

I just came across another such example, which might be even more interesting, since I'm not sure that it's a self-conscious coinage (the way "defamacast" surely was): "Graffitism," defined in the Columbus (Ohio) City Code as basically the act of writing graffiti. It's at 1020 Google hits reported, though the number becomes only 189 if one actually pages through the results; and, as with "defamacast," many of the results aren't even substantive uses of the term.

Any other examples? Again, they have to be words that are used as ordinary English words would be — not Latin, not proper nouns, not all-caps, or the like. And, to give a convenient if arbitrary cutoff, they shouldn't yield more than 10,000 Google hits initially reported. (Just by way of a benchmark, "burglariously" yields over 30,000 Google hits initially reported.)

UPDATE: I originally said "term," but I've now corrected this to "word" -- I'd like to focus on individual words, rather than phrases.


A Constitutional Right to Drooping Drawers?

Do local ordinances prohibiting law slung pants violate the constitution? Do such laws unduly limit the expressive nature of such wardrobe choices? Some think so, and a public defender in Florida is making this claim in court.


Expand the federal "hate crime" law?

In Greeley, Colorado, a trial will begin this week for Allen Andrade, who is accused of murdering Angie Zapata. Zapata (former first name "Justin") was a female transgender person. It appears that Zapata tricked Andrade into a sexual relationship. Andrade was led to believe that Zapata was a female in the conventional sense of the term; when he found out otherwise, he flew into a rage and beat Zapata to death.

Colorado law for sexual assault states that there is no "consent" if the consent "is induced by force, duress, or deception." Accordingly, Zapata may have perpetrated the crime of "unlawful sexual contact", which is a Class 1 misdemeanor and is subject to enhanced sentencing as an "extraordinary risk crime."

As detailed in an article in the Greeley Tribune, GLBT activsts are hoping to use the Andrade prosecution as a springboard for enactment of a federal hate crime law for sexual orientation, the Local Law Enforcement Hate Crimes Prevention Act. The Greeley Tribune accurately quotes my views that hate crime laws in general are a bad idea, and that therefore expanding the laws is bad idea, regardless of arguments made about whether some particular group should or should not be included. That view is set forth in this 2003 Issue Paper.

However, if I were a lobbyist who supported the federal proposal, I would be wary about making Zapata into the face of a lobbying campaign. Matthew Shepard was entirely innocent, and was, accordingly, a sympathetic person around whom to build a campaign. In contrast, Zapata was (on what appears to be an uncontested version of the facts, although the trial might reveal otherwise) criminal whose death resulted from unjustifiable retilation by the victim. Of course Zapata did not deserve to die, but people who perpetrate sex crimes by deception are not particularly sympathetic characters.

UPDATE: Some commenters were interested in the question of whether the linked section of Colorado law is applicable to the definition of "consent" for sex crimes. It is. See People v. Holwuttle (Colo. App. 1986). There is an additional set of definitions in Colorado law for sex crimes. In relevant part, it states, "'Consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act." The Holwuttle approves of blending these two definitions into a single jury instruction. If we hypothesized that only the second definition applied, I do not think it changes the legal analysis. As applied to sex, "the nature of the act" certainly includes the sex of person with whom one is performing the act; maybe some bisexuals would be indifferent as to the other person's sex, but I think that the vast majority of people would consider a person's particular sex to a sine qua non for their consent to a sexual act with that person.


Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo: In his post below, David notes Justice Ginsburg's puzzlement about opposition to citing foreign law when interpreting the U.S. Constitution: "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" This is a fair question. Conservatives haven't gone nuts when judges cite law professors; why go nuts when judges cite foreign law?

  I think the reason is that the Justices who favor citing foreign law have done so in a way that takes sides in the culture wars. Any time a Supreme Court Justice uses language or cites sources that indicate having taken sides in the culture wars, the other side is pretty much guaranteed to go bonkers. Here's what I said about this back in 2005:
  The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.
  Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.
  This works both ways. When a Justice writes an opinion that suggests an identification with the conservative side of the culture wars, it readily triggers a great deal of consternation if not anger from the cultural left. Recent examples include Justice Kennedy's opinion in Gonzales v. Carhart (with its suggestion that abortion may be harmful to the mental health of the mother) and Justice Scalia's dissent in Lawrence v. Texas (especially the line about "the homosexual agenda"). Both of these opinions echoed the language and priorities of the conservative side of the culture wars, triggering a lot of outrage and anger among political liberals. Indeed, the opinions continue to sting years later, as we saw with Rep. Barney Frank's recent accusation that Justice Scalia is a homophobe based on his dissents in Lawrence and Romer.

  Let's return to Justice Ginsburg's question: "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" The difficulty is that if Ginsburg used law review articles in the same way as she favors using foreign law, it would cause the same reaction. The controversial citations to foreign law haven't been to specific decisions that the Justices point out as particularly deep or insightful. The Supreme Court never says, "Golly, I found this opinion by Lord Hobhouse of Woodbury and it's just briliant —it totally changed my mind about the nature of privileges and immunities!" Rather, controversial citations to foreign law tend to arise as part of a survey. Looking at the general category of foreign opinions, the thinking goes, we see a trend. Indeed, it's not even really clear that the Justice who wrote the opinion actually read the foreign law decision that is allegedly so wise.

  An accurate analogy to citing law review articles would therefore go something like this. Imagine a Supreme Court decision striking down an abortion restriction that included this paragraph:
  In reaching our decision, we find confirmation in the scholarship of our nation's law professors and law students. A review of legal scholarship indicates that it is overwhelming against abortion restrictions of this type. Our research has uncovered 19 articles and 42 student comments on this issue, and all but six take a critical position towards legislation such as the one before us. See, e.g., Lawrence Tribe, . . . . [citations omitted] We have much to learn from the wisdom of our scholars, both on faculties and those still in law school who are our scholars of the future. We see their judgment as further confirmation that our decision is correct.
  I would think that would cause the same reaction among conservatives triggered by the Court's citation to foreign law in cases like Lawrence and Roper. It's not about "sources of wisdom," it's about the culture wars.

Related Posts (on one page):

  1. Justice Ginsburg, the Holocaust, and Judicial Review:
  2. Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
  3. Ginsburg on Citing Foreign Legal Decisions:

Ginsburg on Citing Foreign Legal Decisions:

The New York Times has an account of a speech by Justice Ginsburg defending the practice of citing foreign legal decisions:

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the "judge from abroad" is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would "look to the wisdom" of the American professor, and not to that of the foreign judge.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court." There is one reason for that, she said: "You will not be listened to if you don't listen to others."

Really, who cares? Justice Ginsburg's job is to get American law right, not to influence the rest of the world's law. And, anyway, it strikes me that the Canadian Constitution, as interpreted by its Supreme Court, is much more in line with the more collectivist ideologies of other nations than is the U.S. Constitution. Consider how Canada allows free speech to be balanced against purported societal interests in such a way that, for example, allows bans on purported "hate speech." The U.S. should be proud that our law stands alone in this regard, not lamenting that it prevents us from getting cited abroad.

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Well, that's just bizarre. The Holocaust was carried out by a Nazi dictatorship that hadn't been elected since 1932. And if Weimar Germany had established a constitutional court, it's highly unlikely that it would have meaningfully stood in the way of the Nazis. But I'm willing to reconsider if someone can point me to academic literature showing that the establishment of constitutional courts was a response to the Holocaust.

And note the irony that there is one national "constitutional court" that did stand in the way of rising tide of fascism and fascist-inspired policies in the 1930s, and that's the U.S. Supreme Court. The Court invalidated various New Deal policies, in particular the National Industrial Recovery Act (unanimously), that threatened to concentrate far too much unreviewable power in the hands of the President (in the case of the NIRA, the power to set wages and prices across a broad swath of the American economy). If Ginsburg has ever said a kind word about the Supreme Court of the early New Deal period, however, I'd be very surprised. She certainly consistently votes against any attempt to revive even minimal limits on the federal government's power.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: 'Torture? Never.'"

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

I don't know that Ginsburg is accurately describing Israel's law, which as I understand it allows the use of "moderate physical pressure" in exigent circumtances. (Also, an aside, the Israeli Supreme Court is a rather dubious institution. It has arrogated to itself the power to determine the constitutionality of various very important government policies, including with regard to questions of national security, despite the fact that Israel has no constitution. That Barak, a leading advocate of this constitutional coup, is so widely admired by American liberal constitutionalists likely says something significant, and to me not very positive, about their view of the proper role of the judiciary.)

Regardless, there is very good reason that Justice Ginsburg shouldn't be affected by Justice Barak's opinion, as described by Ginsburg, and that's its reliance on moral judgment rather than law [not the fact that Barak is a judge from a foreign country. As a commenter points out, if the issue is the interpretation of an international treaty against torture, foreign precedents are obviously potentially persuasive. But Ginsburg cited Barak not for his interpretation of a treaty, but for his moral judgment]. It's not Justice Ginsburg's job to decide whether allowing the use of torture is a lesser evil, or whether it should be banned because it means "we come to look like that enemy in our disregard for human dignity." Such determinations are for the elected branches to make in establishing the law, and Justice Ginsburg's job is to apply the law they have made, not to make up rules that comport with the values she has adopted after thinking very hard about the learned decisions of judges in other countries. Justice Ginsburg is free to be personally persuaded on the moral issue by Justice Barak, but this should have no effect on her vote on any case involving the legality of torture.

By the way, readers interested in why, in historical context, it's important to limit the influence of foreign law on American constitutional interpretation should read, among other things, one of my favorite books, Ken Kersch's Constructing Civil Liberties, with a focus on the final chapter. In short, the "turn to international law" is the latest in a series of attempts by the Progressive left, some more successful than others, to separate American constitutional law from the unique values that animate the U.S. system of government.

Comments will be open for four hours.

UPDATE: I opened comments, but they are not working. Sorry.

UPDATE 2: Comments are working now. I'll leave them open for a little while.

UPDATE 3: Comments are now closed.


Sunday, April 12, 2009

George Will on the Empress Casino Takings Case:

George Will has written an op ed on Empress Casino v. Giannoulias, the important takings case in which I and other property scholars coauthored an amicus brief urging the Supreme Court to hear it. As Will points out, the case involves a challenge to a narrowly targeted Illinois tax that transfers money from four riverboat casinoes to several horse-racing tracks. Will correctly points out that this is an egregious example of special interest legislation transferring wealth from one narrow interest group to another without any justifying public interest.

Unfortunately, Will also somewhat misstates the legal point at issue in the case. At this stage of the litigation, it is not whether the taking of the riverboat casino's money is for a valid "public use," but whether there has been any taking at all. The Illinois Supreme Court's opinion in the case ruled that no tax could ever be a taking. If that ruling is allowed to stand, the Illinois tax will not only be permitted, but the casinos won't even receive any compensation for their losses. More importantly, state governments will be able to circumvent the Takings Clause simply by using taxation to force firms or individuals to do whatever the legislatures want with their property - without compensation. For example, if the state passes a law requiring a property owner to use his land in a particular way, there might well be a taking. But under the Illionis court's reasoning, there could never be a taking if the state achieved the same result by requiring the owner to pay a special tax if he refused to use the land in the way the legislature mandates.

The "public use" issue was also litigated at the state court level. But it is not part of the cert petition presented to the Supreme Court. In my view, Will is correct to suggest that if there is a taking, there is no defensible public use here. Indeed, the tax is a particularly blatant example special interest legislation, one that may have been passed in part because of a payoff to notoriously corrupt Illinois Governor Rod Blagojevich. However, as Will also points out, the Court reaffirmed the position that almost any governmental objective counts as a "public use" in Kelo v. City of New London (2005). Like Will, I hope that the Court eventually revisits and overrules Kelo and previous decisions that have essentially gutted the Public Use Clause. But that's not the issue that the Empress cert petition focuses on.

UPDATE: The Cert petition itself is available here. The petition describes the question presented as:

Whether the State’s taking of money from private parties is wholly outside the scope of the Takings Clause.


2009 Survey of Books Related to the Law: The Michigan Law Review's annual book review issue is now available online. You can read my own contribution here; it is a review of Christopher Slobogin's book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment.

Joseph Massad Update:

Word comes from Martin Kramer that Prof. Joseph Massad of Columbia may have been granted tenure, though nothing has been formally announced. I've tangled with Massad before (you can read the posts at this link), and I don't see any reason to repeat myself.

However, I did come across something today that calls into question Massad's truthfulness in answering previous allegations against him. A few years back, Massad was accused in a film by the David Project, Columbia Unbecoming, of, in Massad's words, being "intolerant in the classroom." He published a lengthy response, which I reprinted on this website.

Among other points Massad made was this: "Moreover, the lie that the film propagates claiming that I would equate Israel with Nazi Germany is abhorrent. I have never made such a reprehensible equation." [The film actually quotes a student of Massad's as stating that Massad's "favorite description is the Palestinian as the new Jew and the Jew as the new Nazi."]

Now check out Massad's recent piece for the "Electronic Intifada," The Gaza Ghetto Uprising. If Massad does not quite "equate" Israel with Nazi Germany, he surely suggests a direct analogy between them, and it fits quite nicely with the student's claim that Massad referred to Palestinians as the new Jews and the Jews as the new Nazis. For example, beyond the obvious allusion to the Warsaw Ghetto Uprising in his title [I know authors don't always choose their titles, but Massad refers to the "Gaza Ghetto Uprising" in the text of his piece], after discussing a Polish Jew who committed suicide after refusing to serve on a Nazi-sponsored judenrat (Jewish Council) and fleeing to London, Massad writes, "The Palestinian Collaborationist Authority that runs the judenrat set up by Oslo has never even attempted to resist Israeli orders."

So, here's the scenario: (a) student in a documentary claims that Massad accuses Israelis of acting like the Nazis, and thinks the Palestinians are in the position of Jews under Nazi rule; (b) while a controversy brews over the documentary that could cost him his career, Massad denies that he has ever said that Israel is the equivalent of Nazi Germany, and objects that he finds such a notion reprehensible; and (c) once the relevant controversy blows over, Massad writes an article that analogizes Israel to Nazi Germany, and analogizes Palestinians to Jews in the Warsaw Ghetto, in a way that comes about as close to equating Israel with Nazi Germany as one can without directly stating, "I think Israel is just like Nazi Germany."

Various defenders of Massad, who took his response to the allegations against him at face value, should be feeling rather embarrassed right about now.

UPDATE: I should note that equating Israel with Nazi Germany would be protected by academic freedom, so long as a professor didn't try to impose this view on his students. But Massad didn't plead academic freedom, he claimed the underlying allegation was false.

FURTHER UPDATE: On his website, Massad states that the student who made the allegation in question was never his student.

He also claims that Columbia's Hillel rabbi, Charles Sheer (now emeritus) simply made up the claim that Massad argued in a public lecture in effect "that the Zionists are the new Nazis; the Palestinians are oppressed victims and therefore the new Jews," and that this was the original source of the allegations made in the movie. Putting the movie aside, now that Massad has clearly argued in print that the "Zionists" are analogous to the Nazis, and the Palestinians to Jews undergoing massacres by the Nazis, I don't think there's much question as to whether the rabbi's account or Massad's denial is more plausible.

Hurray for the President and our Armed Forces!

Captain Richard Phillips jumped overboard, and was rescued by US Navy SEALS. Three pirates dead, the other one in custody. Details here.


Haven't Had An Open Thread in a while. What's on your mind?

What Went Wrong in the Stevens Prosecution?: In the Washington Post, Carrie Johnson takes a look.

The Piracy Problem.

Consider two approaches—

The Stick. If the United States and other countries simply blew up any ship captured by pirates, including the crew and the pirates themselves, then, after a few demonstrations, piracy would no longer be a profitable activity. The pirates, rational profit-maximizing agents that they appear to be, would conduct backward induction and then find something else to do with their time. After the short term costs are incurred, the sea lanes would be safe until memories faded.

The Carrot. Pay the pirates to stop engaging in piracy. That was the approach of the United States and other maritime powers in the early nineteenth century; for a number of years, they paid ransom as necessary; eventually, the process was formalized as tribute payments, which made the initial capture of the ship and crew unnecessary. As Michael Oren’s recent book makes clear, this practice was entirely rational; when the United States finally decided to destroy the pirates, the naval costs were far greater than the tribute payments had been. The various U.S. administrations paid the ransoms as long as they could but eventually bowed to popular pressure incited by a sense of national shame.

Each approach has characteristic costs and benefits. The stick lacks credibility. The pirates know that no government will kill its own people, nor can governments or shipping companies refuse to pay ransoms. The problem is not so much the doctrine of double effect as the political difficulty of inflicting harm on innocents even to advance the greater good. The carrot gives pirates incentives to invest in more destructive capabilities and draws more people into the labor market. Depending on just how costly piracy is for the pirates, the implicit tax imposed on shipping could end up significantly suppressing economic activity. At approximately $100 million per year, however, we are far from reaching that point.

One significant problem is the low cost of entry into the piracy business. It would be much better if a single pirate leader controlled entry. Then we could do business with him, paying him a tribute (we might prefer to call it a “toll”) in return for a promise not to molest our ships. As a monopolist, he would have an incentive to limit “production” of piratical activity, relative to the unregulated market we currently live in. The monopolist essentially would be selling passage off the coast of Somalia, and would be constrained by competition from people who control alternative routes (which, unfortunately, seems limited). We might even expect the pirates to start organizing, or fighting among themselves, in an effort to establish a single firm that could obtain these monopoly rents. In the happy event that an organization emerged, we could call it a “state” and deal with it as we deal with any other state—paying it or pressuring to act as we want it to act, in light of its interests and capacities. We could even call this state “Somalia.” If the gains from rational management of this newly discovered resource—the power to block important sea lanes—provide sufficient incentives for Somalia’s warring clans to make a deal and reestablish a state that can control entry into the market, we should be sure to keep paying Somalia money (we might call it “foreign aid” if “tribute” or even “toll” is too irksome) rather than yield to the temptation to smash it to pieces. In the state system, sometimes you do better with an enemy than without one.

But that outcome is a long way off. In the meantime, governments will have to employ an unsatisfactory combination of carrots and sticks—mounting expensive patrols that spot and pick off pirates on occasion, while paying ransoms to those pirates who succeed.

Everyone thinks that President Obama will put together an international coalition that will solve the piracy problems. So far skeptics have emphasize the costs of patrolling, which are extremely high. But there are other reasons for skepticism. Clearing the sea lanes is a public good, and no state has much of an incentive to help others. Indeed, we have already seen that states take their own nationals far more seriously than the nationals of other states. The French attempted to rescue a French crew. Piracy was considered a joke among the American public until an American crew was captured; now President Obama is “personally involved,” according to the papers, as he never was before. These conflicting incentives will contaminate all aspects of an international operation. Some states may hope to pay tribute payments to pirates so that the pirates will go after other states (akin to putting bars over your windows so that burglars will go next door). The current practice of responding more forcefully when one’s own nationals are involved will have a similar effect. Obama will have no more luck persuading states to overcome these incentive problems than he has had in so many other areas—economic stimulus, contribution of troops to Afghanistan, assistance in relocating Guantanamo Bay detainees.

Obama has good reason to become personally involved in the current hostage crisis. Despite the relative insignificance of the problem up till now (ransom payments of $100 million per year are a pittance), the pirates’ main tactic—hostage-taking—has a way of capturing the public imagination. It also has a way of sucking the air out of normal politics and destroying presidencies. That is what happened to President Carter, when Iranian militants took over the U.S. embassy in Tehran. And that is almost what happened to President Reagan, who launched his cockeyed arms-for-hostages scheme in order to secure the release of a handful of hostages in Lebanon. The scandal nearly destroyed his presidency. President Obama has every reason to be concerned.

He also has little room to maneuver. Having just returned from a trip promoting internationalism, he has raised expectations that any anti-piracy endeavor will have an internationalist flavor. This will mean costly, time-consuming negotiations for the sake of largely symbolic contributions by other countries, if history is any guide. Having also raised expectations that his administration will act with the utmost respect for legality, Obama will either have to direct American forces to walk on eggshells or risk exposing his words as empty. If the pirates continue to take American hostages, he will have trouble maintaining these commitments while giving satisfaction to the inevitable nationalist backlash driven by the mounting sense of powerless and humiliation that we haven’t seen since the Carter years.


D.C. Vouchers - RIP?

The Washington Post laments the fate of the D.C. vocher program.

Education Secretary Arne Duncan has decided not to admit any new students to the D.C. voucher program, which allows low-income children to attend private schools. The abrupt decision -- made a week after 200 families had been told that their children were being awarded scholarships for the coming fall -- comes despite a new study showing some initial good results for students in the program and before the Senate has had a chance to hold promised hearings. For all the talk about putting children first, it's clear that the special interests that have long opposed vouchers are getting their way.

Related Posts (on one page):

  1. D.C. Vouchers - RIP?
  2. The Defunded D.C. Voucher Program:

How to Handle Pirates:

The ship seized by pirates off the coast of Somalia appears to be the first US-flagged vessel to be seized by pirates in quite some time. What is the proper response? Julian Ku ponders self help. There are also several posts and ideas on the NYT Room for Debate blog here and here. On the subject, last fall, I had a post, "Why Don't We Hang Pirates Anymore?"

UPDATE: Apparently these pirates have been handled.


Sunday Song Lyric: It seems that the Secretary of Education, Arne Duncan, is a Neko Case fan. He appeared on stage to introduce her at the 9:30 Club in Washington, D.C. But don't hold that against her. Here's the beginning of her 2000 song, "Thrice All American," off of Furnace Room Lullaby.
I wanna tell you about my hometown
It's a dusty jewel in the South Puget Sound
Where the factories churn, and the timber's all cut down
And life goes slow in Tacoma

People they laugh when they hear you're from my town
They say it's a sour and used up old place
I've defended its honor, shrugged off the putdowns
They know that you're poor from Tacoma
The full lyrics are on her web page here.

The Somali Pirates:

Strategy Page, one of the very best websites on military matters, explains why the pirates are immune from attack, and, under current conditions, will never be suppressed. (Further explanation here.) Ironically, while international law does not deter the pirates, it does deter their victims, and thus encourages piracy. Which is but a small example of how contemporary international law has been perverted into a tool against international commerce and civilization, whose protection was the very purpose of the creation of international law.

UPDATE: Wonderful essay by Mark Steyn on the same topic, noting, inter alia, the effect of U.K. government interpretation of the European Human Rights Act.