Saturday, May 2, 2009

[Adam Mossoff, guest-blogging, May 2, 2009 at 10:23pm] Trackbacks
The Sewing Machine Combination -- The First American Patent Pool:

We are now approaching the climax of our story of the sewing machine, as we've covered its invention, its patenting, and the rise of the first patent thicket -- the Sewing Machine War. How did this patent thicket come to an end? The answer to this question is in the title to this post.

By the mid-1850s, sewing machine firms were spending all of their time, money and energy in patent litigation, and, as a result, the sewing machine was languishing as a commercial product. The situation demanded a solution, and this solution came from an unlikely source: an attorney, Orlando B. Potter, who was heavily involved in the Sewing Machine War representing a prominent sewing machine manufacturer, Grover & Baker, of which he was also President. Potter’s solution was groundbreaking but also breathtakingly simple: the relevant patent-owners should combine their patents into a patent pool that would be administered as a commercial trust.

The opportunity for Potter to present his idea to the warring parties arose in October 1856, when by chance most of the principal sewing machine patentees and firms were in Albany, New York for the first trial being held among the litany of lawsuits that had been filed since 1854. In a meeting held shortly before the trial began, Potter floated his proposal that I.M. Singer & Co., Wheeler, Wilson & Co., Grover & Baker, and Howe combine their patents. By 1856, these four parties owned the patents that covered the core elements of the fully practical sewing machine as a commercial product.

Little is known about the exact details of this fateful meeting in Albany. It is clear, though, that Potter proposed his “Combination” as a solution to the patent thicket that was the Sewing Machine War. Scholars and historians recount that the three manufacturers agreed to Potter’s plan to create the Sewing Machine Combination.

Howe, however, initially opposed it, and, given the fundamental status of his 1846 patent in the sewing machine industry, the patent pool could not work without Howe’s participation. Howe’s opposition was understandable: The manufacturers made their money by producing sewing machines, and thus they would profit from a patent pool that freed them to manufacture and sell their products. But Howe was a non-practicing entity who made his money through licensing fees, which he was garnering through threatened infringement lawsuits and actual injunctions. In fact, throughout the 1850s, Howe was not attempting to manufacture sewing machines at all, and the profits he earned on the basis of his 1846 patent were obtained solely through royalties.

The three firms convinced Howe to join the patent pool by providing him with special concessions, which included a special royalty of $5 for each sewing machine sold in the United States and $1 for each sewing machine exported to foreign markets. Most important, Howe wrung a third concession from the other three firms that the Sewing Machine Combination would have no less than 24 licensees, which ensured a steady income stream for Howe from his special royalties on sales of sewing machines by these licensees. With these special terms, Howe agreed to join the Combination.

The Sewing Machine Combination functioned as a classic patent pool. As with modern patent pools, its four members were free to compete with each other in the sewing machine market, but they issued cross-licenses to each other in the use of their respective patents. Each member paid a $15 license fee for each sewing machine they produced. This fee was distributed among the four members of the Combination as follows: a small portion was put into a war chest to cover expenses for future lawsuits involving any of the Combination’s patents, Howe then received his special royalty payment, and the remaining monies were apportioned among all four members. In 1860, the Combination reduced this fee from $15 to $7, and Howe’s royalty was reduced to $1 for all sewing machines.

Yet the Combination was more than just a patent pool, it was also a trust. The consent of all four members of the Combination was required for licensing its patents; in practice, though, this collective consent was granted as a matter of course with the exception of license applicants who sought simply to copy one of the Combination member firm’s own sewing machines. Unfortunately, the Combination’s records were lost in a fire, but a few remnants remain, which show that member and non-member firms received licenses for producing hundreds of thousands of sewing machines. As the head of the Combination, Potter also became a lead plaintiff in many of the future infringement lawsuits concerning the Combination’s patents. Lastly, the Combination’s rules did not expressly require or promote price collusion among its members, but it was alleged to have occurred, which is unsurprising.

In my next posting on the history of the sewing machine, I will discuss the commercial innovation in the sewing machine market following the formation of the Sewing Machine Combination. This will be the last posting on the history, and then I'll conclude with some of my last postings as a guest-blogger with some observations of what we can perhaps learn from this tale, incorporating some issues already discussed in the comments to my blog postings.


Conservatives Argue Over Mary Ann Glendon:

Some interesting chatter over at National Review on Mary Ann Glendon's decision to rebuff Notre Dame.

Danielle Crittenden starts here and elaborates here. Responses by Maggie Gallagher, Kathryn Jean Lopez, and Ramesh Ponnuru.

I've given my two cents here but to summarize, I think there is a line to draw between giving someone a platform to speak as part of the academic enterprise and honoring someone with a honorary degree and giving that person a platform to speak at the university's most important collective event of the year.


And here is a really interesting and thoughtful post by Glendon's daughter.


Souter's Appointment:

For those interested in the original appointment of Justice Souter to the Court, I recommend (as I have previously) Jan Craford Greenburg's outstanding book, Supreme Conflict. I blogged on it long ago and identified the Souter nomination as one of the most interesting parts of the book. Here's what I wrote then:

Fourth, her rendition of the Souter nomination reads almost more as a comedy than a tragedy--the process and outcome was so farcical that it would be absurd to think that it would have been anything but random chance that Souter would have turned out to have been a Justice suitable to conservatives, so Greenburg hardly even wastes any ink suggesting that conservatives could have seriously been surprised or disappointed by how Souter has turned out.

I'm not aware of any other work that is as insightful as Greenburg's on Supreme Court nominations. Not to mention that it is a truly fabulous read.


"What do Merrick Garland, David Tatel and Jose Cabranes have in common? "

Ben Wittes says they are among "the very finest federal judges in the country," and yet none of them will be serious contenders to replace David Souter.


Gitmo Military Commissions Part Deux: The Sequel:

The NYT reports:

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself. . . .

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.

Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

Should we call these "kindler, gentler military tribunals"?

Related Posts (on one page):

  1. It's Official: Kinder, Gentler Military Commissions:
  2. Gitmo Military Commissions Part Deux: The Sequel:

Souter's Legacy & His Replacement:

There are two interesting mini-symposia on Souter this morning.

The NYT's "Room for Debate" blog presents "The Judgment on Justice Souter," featuring, among others, Akhil Amar, Lani Guinier, Kermit Roosevelt, and our own Orin Kerr.

Tomorrow's Washington Post will feature "Replacing Justice Souter," with a line-up that includes Ben Wittes, Walter Dellinger, Ruth Wedgewood, and Rick Hasen, among others.


Bloggers: Torture Commission would be good politically. Energy & Climate, or Health, will help Obama's online appeal:

In this week's National Journal poll of political bloggers, the first question was: "Does your party stand to gain or lose politically if a torture commission is established?" While the question generated a fair amount of pushback from both the Left and the Right (in that political concerns should not be the determining factor), the overwhelming vote on both sides was that their party would be much more likely to gain than to lose. On the Right, I was one of the few who voted "lose," although for the anomolous reason that I am one of the few (perhaps the only) Democrat in Right group. I wrote: "Obama loses. The inquiry will consume the nation's political energy, as did Lewinskygate and Watergate. The result would make it harder to move the Democratic agenda forward."

Which is not say that this reason should be decisive in anyone's consideration; most people today agree that pursuing the Watergate investigation was the right thing to do, despite the fact that it consumed the nation's political energy for over a year.

Question 2 was "Which of Obama's policy priorities presents the best opportunity to rally his network of online supporters?" On the Right, 53% said alternative energy/climate change, and 33% said health care. On the Left, 76% said health care, and 18% picked energy/climate. The other choices (budget, reduce wasteful spending, taxes) got hardly any votes. I wrote: "The climate issue appeals to lots of idealistic young people, the core of Obama's online network." If the question had been about Obama's base and interest groups more broadly, I might have voted for health care. I concede that the Left bloggers obviously have a better sense of the desires of their readers; my guess was about the "online" supporters more broadly--such as people who signed up as Obama fans on Facebook, but who are not necessarily regular readers of political blogs.


Possible Obama Supreme Court Nominees and the Second Amendment:

In the October 2008 issue of America's 1st Freedom, one of the NRA member magazines, I gave a brief overview of the Second Amendment record of some of the people who had been mentioned as possible Obama appointments to the Supreme Court: Sonia Sotomayor, Merrick Garland, Cass Sunstein, and Eric Holder. This is not, of course, a full list of all the people who have mentioned.


Friday, May 1, 2009

[Adam Mossoff, guest-blogging, May 1, 2009 at 11:58pm] Trackbacks
The Sewing Machine War -- The First American Patent Thicket:

The typical story of the Sewing Machine War is that the incremental invention of the sewing machine through complementary contributions by differing inventors now came to its full fruition with a litany of patent infringement lawsuits. However, Howe and Singer may have had something to do with this descent into full-scale legal warfare with their public announcement of the settlement of their “long and protracted legal controversy.” In the August 12, 1854 issue of the Scientific American, for instance, they concluded their settlement announcement with the following dire warning: “We caution the public against buying any of the numerous infringer machines in the market. They all infringe one, and some of them several, of our patents, and those who attempt to use them will be prosecuted.”

With Howe and Singer assuming this very aggressive litigation stance — now standing united together through their license agreement — it is perhaps unsurprising that the sewing machine manufacturers soon let loose a flurry of their own lawsuits. As one historian has observed, after Howe and Singer concluded their dispute, “all the sewing machine manufacturers got busily down to the job of suing each other out of existence.

Although it was no longer defending itself against Howe, I.M. Singer & Co. was soon defending itself against numerous patent-owners in more than twenty separate lawsuits filed in three or four different venues, including Philadelphia, the Northern District of New York, and the Southern District of New York. I.M. Singer & Co. was not just a defendant, as it filed lawsuits in federal court in Philadelphia against Grover & Baker and Wheeler, Wilson & Co., two of its main competitors in the sewing machine market. Howe was also soon defending himself in lawsuits in which he was charged with infringing the other elements of the fully practical sewing machine that had been invented by others.

The sheer number of lawsuits was not the only problem. These were patent infringement lawsuits, requiring testimony and documentation of detailed technical evidence concerning both the infringing product and the patented invention. The deposition testimony taken in a single lawsuit filed by Grover & Baker, for instance, was reported at the time to have “fill[ed] two immense volumes, containing three thousand five hundred and seventy-five pages” (emphasis added). In an age before computers, word processers or typewriters, producing more than 3,500 pages of legal transcripts for a single case was no small feat.

This was not an unusual case either, as Singer was reported to have “made a special closet to hold his [legal] files,” and “Wheeler and Wilson had several closet shelves filled with testimony.” An author of a nineteenth-century history of the sewing machine reported that he had pieced together Elias Howe’s life story, in part, from having “gone over thirty thousand pages of printed testimony, taken in the numerous suits to which sewing machine patents have given rise” (emphasis added). One historian observes that “the continuing court litigation over rival patent rights seemed destined to ruin the economics of the new industry.”

Although these details of the Sewing Machine War are well known, at least to some historians, no one has yet explained why this patent thick arose beyond identifying the fact that there were overlapping patent claims. But this does not by itself create a patent thicket. There have to be reasons why patent-owners assert their property claims against each other to the point of creating a litigation free-for-all, replicating the conditions of Thomas Hobbes’s state of nature, in which life is “solitary, poor, nasty, brutish, and short.”

From the historical record, it is possible to glean several reasons for the rise of the Sewing Machine War.

First, in the early 1850s, the sewing machine was not yet a commercially successful product, and there had in fact been numerous failures by both inventors and firms. On both sides of the Atlantic, Howe had attempted to secure financing to manufacture and sell his invention in the late 1840s, but failed. Even Sherburne Blodgett was skeptical of the commercial promise of sewing machines, although the Lerow & Blodgett firm was the first large-scale American manufacturer of sewing machines, which were produced under Blodgett’s patent. In fact, it was a Lerow & Blodgett sewing machine on which Singer tinkered in 1850, leading Singer to make his contributions to this soon-to-be valuable commercial product. Yet, after I.M. Singer & Co. began selling the Singer Sewing Machine in late 1850, Blodgett reportedly told Singer that he was an idiot for trying to manufacture and sell sewing machines. Sewing machines simply would not work, Blodgett told him, and the only profit a sewing machine patentee could make was in selling territorial licenses in the patent itself.

Singer’s early sales experiences confirmed Blodgett’s pessimism, as he would later write: “I met with continual objections to the introduction of my machine from persons who had bought those of prior inventors and had thrown them aside as useless, and in some cases was showed out of the stores where I called as soon as my business was made known by me.”

Second, in addition to the well-grounded skepticism of the buying public about the practicality of a sewing machine, there were cultural forces at work in nineteenth-century America that created roadblocks to the efficient adoption of sewing machines throughout the sewing trade. Thimonnier’s story was well known to Americans, and the spirit of the French luddites who had destroyed Thimonnier’s Paris workshop and had hounded him out of the country was appearing in pockets of American resistance to the sewing machine. One nineteenth-century article observed how tailors opposed the sewing machine, because they “thought it would beggar all hand sewers, and refrained from using it on principle”

Moreover, there was a strong cultural bias against the use of machines by women — the principal source of hand-sewing labor in the nineteenth century. For instance, Singer at first dismissed the entreaties of his business partners in 1850 to tinker with the Lerow& Blodgett sewing machine, responding in his usual hotheaded manner, “What a devilish machine! You want to do away with the only thing that keeps women quiet, their sewing!”

Although Singer eventually acted against his chauvinism, he was not alone in thinking such things, and the luddites who were agitating the sewing unions used these widespread prejudices to reinforce their arguments. An address to the Shirt Sewers’ and Seamstresses’ Union warned of the “disastrous consequences” to the hand-sewing female laborers resulting from the mass adoption of the sewing machine in the sewing trade, arguing “that peculiar branch of industry which exclusively belonged to women — that industry which developed itself in the facile and pliant use of the fingers — would be totally extinguished.” In sum, in the early 1850s, the financial success of the sewing machine was still an abstraction, but the prior failures, the skeptical public, and existing cultural prejudices were a concrete reality.

Third, in contrast to the practical and cultural difficulties in successfully commercializing sewing machines, Howe succeeded brilliantly in the infringement lawsuits he began filing in 1852. As a result of his injunctions and licenses, Howe was in control of the nascent industry and was making money hand over fist, or at least it seemed as such to the firms who were paying royalties to Howe while struggling with the vicissitudes of the new sewing machine market. In 1852, Howe’s patent, which had done nothing for the past six years to remedy the inventor’s extreme poverty, was now producing an income of “a few hundred dollars a year.” By 1860, he claimed to have earned $444,000 in profits from licensing his patent, which he attested to in his application for a seven-year extension of his patent term (which was granted). When Howe’s patent finally expired in 1867, as a result of his participation in the Sewing Machine Combination, his royalties totaled more than $2 million.

Such extensive licensing profits led one anonymous writer in 1867 to complain that Howe had “been overpaid for his inventive labors.” As some patent scholars would say today, Howe exploited “royalty stacking” to obtain license fees exceeding his incremental contribution to the sewing machine (he did contribute only 3 out of the 10 total elements of a successful sewing machine). By the early 1860s, Howe had not yet manufactured a single sewing machine, but he was one of the most financially successful patentees out of the hundreds of patents that had been issued on sewing machines by that time.

It was perhaps understandable that the other patent-owners perceived this non-practicing entity — the inimitable “patent troll” — to be flourishing through his use of lawsuits, injunctions and licensing, as they watched their own attempts at manufacturing actual sewing machines flounder in both the market and in court. They likely attributed the key to Howe’s success, however slight by the mid-1850s, to his apparent disavowal of manufacturing and his pursuit of royalties as his sole source of profit.

This was more historical accident than careful strategic business planning on Howe’s part, as he had attempted but failed to commercialize his patented invention, but that is not how the other sewing machine patentees probably saw it. A good subjective intent does not necessarily translate into actions that are objectively distinguishable from another person acting with bad intent. As lawyers well know, divining someone's intent is often a troublesome evidentiary (and metaphysical) issue, and thus objective actions more often than not are used as proxies for intent. In the Sewing Machine War, Howe's objective actions spoke loudly. As evidenced by the 1867 article in The Galaxy Magazine, most people attributed “the secret of Mr. Howe’s success” to the fact that “he litigated himself into fortune and fame.”

Of course, as a result of the sewing machine’s provenance, as one mid-nineteenth-century book remarked, “it is now utterly impossible to make a sewing machine of any kind of any practical utility without directly infringing several subsisting patents, the validity of which cannot by questioned.” The result was an explosion in lawsuits as these myriad patent-owners, such as I.M. Singer & Co., Lerow & Blodgett, Wilson, Wheeler & Co., and others, attempted to claim their rightful slice of the royalty pie. In so doing, they created the first American patent thicket.


John Allison and Rand:

I've recently had the opportunity to meet John Allison and hear him speak. Allison was the longtime CEO of BB&T Bank. I believe he has stepped down from that role but remains the Chairman of the Board. I first really became aware of Allison when he announced that BB&T would refuse to lend for projects using "Kelo-style" takings to give land to private developers. My admiration grew when I read his pointed criticism of the TARP bailout in the fall.

National Review has a good piece this week profiling Allison and the influence of his Randian philosophy on his life and his business success. He may be the most articulate and influential expositor of the freedom philosophy and Randianism that I believe I've heard. I'm not a Randian, but if you ever get the opportunity to hear him speak on his philosophy or the bailout, I highly recommend it.

In fact, I think the most interesting point in the piece is how Allison's philosophy helped BB&T to avoid the ruin of many other banks:

“We didn’t do negative-amortization mortgages,” Allison told NRO, “and to the degree we’ve had more successes, I believe it’s because we’ve had a long-term integrated philosophy. We’re very much a principle-driven organization, and those principles we adhered to in the good times and the tough times are an example of the reason we didn’t do the negative-amortization mortgages.” Further, it’s worth noting that while troubled banks went looking for handouts, Allison slammed the government bank-bailout program.

The fact that BB&T didn’t dive head-first into the shallow pool of subprime mortgages certainly goes a long way toward explaining the relative health of BB&T as an institution. But how was BB&T able to resist chasing after all that new mortgage money?

The answer is simple: Subprime mortgages were bad for the people who took them out. That went against BB&T’s philosophy — not for reasons of altruism but because it would have been poor strategy. “We’re obviously a for-profit company, but we don’t think that it’s good business in the long term to do bad things to your clients, even if you make a profit doing it,” Allison said. “So we chose not to do negative-amortization mortgages because we knew it was going to get a lot of people in financial trouble.”

There's a lot of general life wisdom in that anecdote.

Cameras at the Supreme Court: Justice Souter famously said, "over my dead body." But when he is no longer a Justice, will the idea get new life?

The Duty To Rescue, or How Kind Are Strangers?

The absence of a generalized duty to rescue is a perennial feature of the first year of law school. Generations of law students have learned of the existence of the no-duty rule by reading hypothetical cases of babies who drowned in puddles while Olympic swimmers stood by and did nothing, and real cases, such as Yania v. Bigan and Kitty Genovese in which bystanders did not intervene or notify the police when someone required rescue -- with tragic results. The no-duty rule prevails in most of the United States, but it is not popular. As I noted in an 2006 article in the Texas Law Review, incidents of non-rescue seem to result in a predictable cascade of events:

When a case of non-rescue becomes public, newspaper editorials and television commentators will denounce the indifference of bystanders. If the non-rescuers can be identified, they will be held up to public scorn. The responsible district attorney will reluctantly acknowledge that the criminal law is powerless in such cases while condemning the non-rescuers on moral grounds. If a tort case is actually brought against a non-rescuer, the judge will throw it out, but note that the non-rescuer must answer to God for failing to act. Politicians will introduce legislation reversing the common law rule. Comparisons will be drawn to other infamous cases of non-rescue, such as Kitty Genovese.

In short order, academic conferences and symposia will be held at which speakers will criticize the no-duty rule and the indifference of bystanders. Communitarians will suggest that Americans are insufficiently civic minded. Social meaning scholars will suggest that the no-duty rule is sending the wrong “expressive” message. Feminists will decry the “male” orientation of tort law, with its emphasis on individual autonomy and rule-based decision-making. Psychologists and evolutionary biologists will report the insights derived from research on altruism and collective inaction. Corrective justice scholars will argue that the law should enforce common moral intuitions. Comparative law scholars will suggest the United States should follow the rest of the civilized world in adopting a duty to rescue. Law and economics scholars will debate whether the no-duty rule is efficient. Doctrinal scholars will debate the relative merits of criminal and tort sanctions in dealing with future non-rescues. Law review articles and notes condemning the current state of the law will be published. The sequence will then terminate, to be repeated after the next instance of non-rescue.

Everyone involved in these serial exercises in ritual indignation behaves as if non-rescues occur frequently enough that a statutory solution is urgently required. Stated more concretely, the entire debate over the no-duty rule has proceeded based on the assumption that non-rescues are too common, meaning that rescues are too infrequent. Proponents of a duty to rescue have argued that a statutory solution can decrease the frequency of non-rescue and increase the frequency of rescue, without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, and are likely to be misused by politically ambitious prosecutors.

A recent incident, involving a lawyer, provides a striking counter-example to the usual framing of the debate over the no-duty rule.

Longtime Washington lawyer Charles Schulze collapsed and died this weekend in Florida after diving into the ocean to save two drowning children. When news of the 73-year-old’s death reached colleagues at his firm, Schulze & Pederson, they were dismayed, but not shocked. Somehow, the doomed act of heroism was exactly the sort of thing they expected from their boss, says one co-worker, Sherri Lahay Lasover. According to the South Florida Sun-Sentinel, the fatal incident occurred while Schulze was on vacation in Pompano Beach, Fla., with Helen Smith, his partner of 20 years. The two were walking along the shore when Schulze noticed two brothers, 9 and 12, struggling in the surf. He dashed into the water and grabbed the younger boy, before swimming out more than 40 yards to fetch the older child as well. Schulze collapsed as he brought the older boy to shore. By the time paramedics arrived on the scene, he had no pulse.

News coverage of this heroic rescue may be found here, and here, and here, with an obituary of Mr. Schulze in the Washington Post here.

Most discussions of the duty to rescue focus only on the victim of a non-rescue. Rescue is ignored, as are the consequences for a rescuer of "getting involved." However, rescue and non-rescue are two sides of the same coin – so in thinking about the costs and benefits of imposing a duty to rescue, it is useful to look into the frequency and consequences of non-rescue and rescue, and compare the experiences in states that do and don't have a generalized duty to rescue. More years ago than I am willing to admit, I started collecting data on those issues. My TLR article provides the first empirical assessment of some basic questions about rescue and non-rescue, including

  1. What is the provable frequency of rescue and non-rescue in the U.S.?
  2. How often are rescuers injured or killed?
  3. How often does non-rescue result in injury or death?
  4. Is there a difference in rates of rescue and non-rescue when comparing states with and without a duty to rescue?
  5. What motivated the three states that had a generalized duty to rescue at the time the article was published (Vermont, Rhode Island and Minnesota) to adopt a duty to rescue?
  6. To what extent is Mr. Schulze a representative case?

In subsequent posts I will address these issues. The article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue,” 84 Tex. L. Rev. 653-738 (2006) is here.


Why I'm Guessing Obama Will Nominate Elena Kagan: I've been writing for a while that I would guess Barack Obama will nominate Elena Kagan to the Supreme Court to replace Justice Souter, especially over leading short-listers like Sonia Sotomayor. I thought I would blog a bit more about why I'm guessing that.

  As I see it, it seems likely to me that Obama will want to nominate someone who could be a charismatic leader for the liberals on the Court. That's true for three reasons. First, Obama is a very popular new President who will have 60 votes in the Senate, so there isn't the usual political reason to pick someone more modest or centrist. Second, Obama is a former law professor and former President of the Harvard Law Review: In those circles, the more lawyerly liberals (the bean-counting, move-left-small-step-by-small-step kind) are at best compromises. Third, based on his first 100 days in office, Obama seems to like bold action if he can take it.

  Given these three factors, I suspect Obama would want to nominate someone who will change the ground game at the Court. The idea would be to broaden the range of viewpoints on the Court and shake things up a bit. I think this environment tends to favor someone who is known as extremely smart, charming, and without the baggage of a lot of judicial experience coloring between the lines as a lower court judge. I think Kagan best fits the bill for this. I should add that I don't actually know what positions Kagan would take; her relevant public record is sparse. I just expect that she has the smarts, energy, charisma and perhaps inclination to shake things up a bit.

  Those who expect Obama to pick Sonia Sotomayor focus a lot on the fact that she is Hispanic. That is true. At the same time, I would think the current political climate doesn't make that as relevant as it could be. Obama enjoys an incredible 85% approval rating among Latinos, and Obama is only 100 days into his first term. Obama doesn't need to pick a Latino replacement for Souter to keep people on board: it's not like mass numbers will defect to vote for Sarah Palin in 2012 if Obama nominates someone else. Plus, by the time Obama is running in 2012, his 2009 pick will have had 2-3 years to prove herself as a solid liberal vote. So under the circumstances, I see the race question as less important to Obama than it could be.

  Finally, some commentators suggest that it would make no sense for Kagan to be nominated so soon after being confirmed as SG. I disagree: I think the timing is perfect. Kagan just went through the confirmation process a few months ago, and everybody knew it was a trial run for a possible nomination for the Supreme Court down the road. No major hurdles or issues emerged, and Kagan was easily confirmed. With the dress rehearsal having gone smoothly, it makes it easy for Obama to nominate Kagan again, this time to replace Souter.

  That's my thinking, anyway. Obviously, this is all sheer speculation based on no insider information at all. But that's my best guess.

  UPDATE: I have altered the post a bit to make it clearer. To elaborate a bit, I don't actually know the specific positions Kagan would take; her record is sparse. What I was trying to identify was more of an energy and direction than a particular set of positions. I also, I took out the phrase about whether there has been a Hispanic Justice before, as it immediately drew about 10 commenters who wanted to discuss Justice Cardozo; obviously that's not the point of the post.


Steve Jakubowski has a couple of posts on the Chrysler case worth reading, here and here. The second post, on the feasibility of a section 363 sale here, is especially interesting. A quick 363 sale as a going concern seems to be the key to the government's notion that the case can be essentially processed in 30-60 days.

Mark Roe in the WSJ today is more skeptical: "A Chrysler Bankruptcy Won't Be Quick." I tend to agree with Roe--I just can't imagine this case moving as quickly as the government hopes. Nor is it obvious to me why exactly such haste would be necessary.

I was confused by one point that Roe makes, though:

Meanwhile, Fiat will want to rationalize Chrysler's bloated dealership network. Indeed, this once seemed a core aspect of any effort to reconstruct Chrysler, so the last day's focus on a few secured creditors seems misplaced. But terminated dealers won't go quietly. They'll argue that their contracts can't be easily rejected by a bankruptcy judge because they're protected by state franchise laws. And in any event, they are entitled to some form of payment (reduced or otherwise) from a bankrupt Chrysler if their dealerships are terminated.

I would have thought that section 365 would preempt state franchise laws on this when it comes to rejection. I understand why 365 would be a problem for assumption, but do these laws erect a barrier in bankruptcy to rejection? Any insight appreciated.

Finally, I agree with the WSJ editorial board on the big picture: getting this out of the political process and into the bankruptcy process is the best way to try to rehabilitate Chrysler and get it to a satisfactory outcome.


I Was (Apparently) A Neglected Child:

My home county of Arlington's Department of Human services has published what it calls "the minimal acceptable standards for the supervision of children developed by professionals in collaboration with the community." According to these guidelines, eight-year old children "Should not be left alone for any period of time. This includes leaving children unattended in cars, playgrounds, and yards." I not only played in my back yard unattended at age eight, but, if I remember correctly, was free to wander around my neighborhood unaccompanied by an adult so long as I came home before dark, and in New York City (Queens) no less. Somehow, I survived unscathed, as did each and every one of my peers.

[By the way, I'm not arguing over whether it's good practice to keep your eight-year-old supervised, I am instead arguing that its absurd to claim that allowing an eight-year-old to play in the yard unsupervised does not meet even a "minimal acceptable standard" for supervising children.]

UPDATE: I learned of this from a mother who was charged with criminal misconduct for leaving her child asleep in a car for five minutes while she ran an errand:

I left my daughter in the car to go into a store for a few minutes. Passerby's called the police. She had fallen asleep and I knew I'd be back in minutes and was unaware this is unlawful [because, as we shall see, it's not]. I was away approximately 5 minutes but the officer wrote a summons for me to appear in court.

Summons: I was charged with a Class 1 Misdemeanor, Contributing to the Delinquency of a Minor. The officer had the discretion not to cite me but he did.

Case Outcome: My case will be dismissed if I complete a parenting class and 50 hours of community service.

VA Law: The VA General Assembly several times considered bills that would prohibit children being left in cars. This bill has not been passed in VA however, it has passed in other states. My lawyer told me in the Commonwealth of Virginia, they lump infractions into basically Misdemeanor or Felony. The trial proceeding determines the outcome. In my case, the section of law I was cited with 18.2.371 is a broad interpretation of rendering a child in need of services, in need of supervision, or abused or neglected. If it involved the temperature of the car too hot/cold then it could have been a more serious charge.

I think it was an abuse of the police officer's authority to have charged the mother with a crime when the Virginia legislature had specifically decided NOT to make the behavior in question a crime. Moreover, states that do have laws banning leaving children in cars usually specify that the child must be left alone for at least ten minutes. So the legislature failed to pass a law banning the action in question, and in jurisdictions that do ban it, the mother would still have been in compliance. Yet the "justice" system still charged her with a crime. Unbelievable.


My Two Favorites on the Short List: I think President Obama has too many votes in the Senate to care very much about what folks on the right half of the political spectrum think about those on the short list. Still, I thought I would flag the apparent short-listers who are my favorites: Merrick Garland on the DC Circuit and Diane Wood on the Seventh Circuit. Both are moderate-liberals who are very smart, thoughtful, and principled; both are excellent judges. I would be delighted if either were nominated.

  In my next post, I'll say a bit more about why I think the likely nominee is Elena Kagan. I should have that up shortly.

  UPDATE: A few readers whose judgment I trust have written in to say that my judgment is off about Judge Wood: According to these readers, Judge Wood is actually a troublesome pick. I note their concern, and add that I have only relatively limited experience with Judge Wood's work and that more investigation would be needed.

Gay marriage and the "bandwagon effect":

The Vermont legislature overrides a governor's veto to pass a gay-marriage bill. Same-sex marriages begin in Iowa, the state legislature and governor balk at banning it, and even state GOP leaders seem lackadaisical in opposition. The New Hampshire legislature approves a gay-marriage bill. The Maine Senate approves it. D.C. recognizes gay marriages from other states, with D.C.'s own recognition of such marriages up next. The Governor of New York pushes a gay-marriage bill, and the state assembly takes it up, having previously voted for it. The legislature in Rhode Island, the "most Catholic state" in the country as one Bishop notes, strongly considers a bill. The Connecticut legislature passes one, after a court decision, and a Republican governor signs it. The Nevada senate approves a near-civil unions bill. A GOP governor in heavily Mormon and deeply red Utah backs civil unions. Colorado approves two laws, one granting significant legal protection to gay and other unmarried couples and one extending benefits to same-sex domestic partners of state employees. And Republican strategists start questioning the party's opposition to gay marriage. No wonder: For the first time ever, a national poll shows a plurality (49%) for it, while others show significant spikes in support.

All of that has happened within the past month. And, I should add, gay marriages started today in Sweden, the seventh country to recognize them. (HT: Niclas Berggren) April was the kindest month, a blossoming Spring, for gay marriage.

Is all of this a coincidence, or is it evidence of a "bandwagon effect"? Ryan Sager thinks it's the latter:

The bandwagon effect — relatively well-established in social and political science — is when voters are influenced in their opinions or votes by which side they perceive as having majority support or being the “winning” side. While partisans tend to remain committed, more undecided voters react to two basic impulses: wanting to follow the herd and assuming that the majority of people must have information that they don’t. . . .

The question, then, is whether this is happening on gay marriage.

The first question, of course, is whether there’s a pronounced trend toward public support. Despite a misinformed editorial from National Review earlier this year (one which will go down in history along with the magazine’s pro-segregation editorials of the 1950s), the trend is clear. . . .

As . . . major polls on gay marriage and civil unions makes clear, support for both is on the rise. Civil unions are pretty clearly above the 50% mark at this point. The new ABC News-Washington Post poll is probably a little on the high end, but gay marriage has clearly come a long way as well.

So, is gay marriage picking up steam, or is this going to be an extremely gradual process?

Well, as [Nate] Silver mentions in his post, gay marriage has gained about 8 points since 2003’s Massachusetts court decision; civil unions have gained about 13 points. Now, the civil-union data doesn’t go back very far. But that 8 point gain over six years for gay marriage is better than the roughly 6 point gain that gay marriage saw in the nine years since 1994. . . .

Whether or not some people want to call it media bias, the message going out to the average voter on the fence is that this is the way the wind is blowing — anyone who’s not on board will be left behind.

Nothing is inevitable, and the attitudes of young people can change as they age. Iowa will be especially interesting to watch. But even aside from the dramatic developments of April, Sager is right about the trend. Call it an avalanche or a bandwagon or whatever you like, the political and legal momentum is unmistakable. It's different from that other major moral and social issue, abortion. Thirty-six years after Roe we are not seeing a bandwagon effect on that issue. Thirty-six years after Goodridge things are likely to look much different. People will continue to oppose abortion long after they've stopped opposing gay marriage, even though both are lumped together now as "family values."

One major problem with the bandwagon, however, is that it will inevitably hit the stone wall of 30 or more state constitutional amendments. Unless the Supreme Court intervenes, overcoming those amendments will require not just majorities, but super-majorities of popular opinion. Many will have to be voted on by the people at the ballot box, where so far the bandwagon has been in a rut.


Mayday! Mayday!

I suspect many of you know this, but for those who don't, a fun etymological fact -- the distress signal "Mayday!" doesn't come from May day, but rather from "French m'aidez or m'aider ‘help me!’" (to quote the Oxford English Dictionary).


AIPAC Charges Dropped:

The Justice Department has decided to drop charges against two former AIPAC officials accused of sharing classified information given to them by a government official with various individuals, including an Israeli government official. I expressed my skepticism regarding the case here and here. Given that anything about AIPAC tends to bring out the loons, and I have a busy day ahead of me, I'm leaving comments closed. And speaking of loons, I would have preferred that the case go to trial with a "Not Guilty" verdict, given that the loons are now going to console themselves by claiming that the case was dropped because of political pressure by you-know-who.

UPDATE: And I wrote in a comment to one of Orin's posts: From what I've read, this investigation involved long-term phone taps, surveillance, and a sting operation, and they only managed to catch the staffers in [arguably] illegal activities once Franklin told them that he had classified information that the lives of specific Israeli agents in Iran were in danger. This seems like rather thin gruel given the scope of the investigation, which could mean that (1) the hearsay [that AIPAC staffer were engaging in wrongdoing, leading to the investigation] was wrong or exaggerated; (2) as the commentator above suggests, someone was out to get AIPAC; or (3) that the staffers had become more careful about not stepping over the legal line than when the feds got their original information. We are left to wonder whether 1, 2, or 3, or some combination, is correct.

How Souter's Replacement Could Change the Court:

The prevailing wisdom is that replacing Justice David Souter will not have a significant impact on the Supreme Court's balance. For most high-profile, ideologically charged issues, this is probably true (at least in the near term). Justice Souter is generally quite "liberal," and anyone President Obama nominates is likely to be quite liberal as well. That said, I think there are two ways in which Souter's replacement could have a significant effect on the Court's balance and doctrinal trajectory.

First, Justice Souter's replacement could alter the balance of the Court on a number of issues on which the Court is closely divided, but does not split along the traditional left-right fault line. Consider, for example, this term's decision in Arizona v. Gant. Justice Stevens' majority limiting the search-incident-to-arrest exception to the warrant requirement was joined by Justices Ginsburg, Souter, Scalia and Thomas. Justice Breyer was in dissent. Other criminal law cases, including the sentencing guideline cases, have produced similar lineups. So, if Justice Souter's replacement were to align with Justice Breyer, instead of Justices Stevens and Ginsburg, we could have a significant shift on the Court. Indeed, replacing Justice Souter with a justice who follows Justice Breyer's approach to criminal law issues could actually move the Court to the "right" (at least on these issues).

Replacing Justice Souter could also have a significant effect is on the Court's decisions on the due process limitations on punitive damages. Justice Souter joined the five justice majorities in BMW v. Gore and Philip Morris v. Williams limiting the award of punitives on due process grounds, and also wrote the Court's majority in Exxon Shipping v. Baker, which limited punitive damages under the federal common law of maritime. Again, "liberal" justices are split on this question. Here, however, if Souter's replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court's recent punitive damages cases could be overturned.

A second way that Justice Souter's replacement could alter the balance on the Court would occur behind the scenes. Adding a new justice inevitably alters the internal dynamic on the Court, and some justices are better coalition builders than others. Insofar as Justice Souter's replacement is more (or less) able to forge consensus and draft opinions that command wide support, this could also have a significant effect on the Court. Even were President Obama to replace Justice Souter with someone who votes identically on every issue, the nomination could still have a significant impact (especially over time) if the new justice is more able to influence his or her colleagues.

Many on the Left say they want President Obama to nominate a "liberal Scalia". I would say they should be careful what they wish for. Justice Scalia's opinions may be well-written and intellectually satisfying, but the same things that can make his opinions fun to read may prevent his opinions in many areas from commanding a majority of the Court. To take one example, documented by Professor Richard Lazarus shows in this paper, Justice Scalia's insistence on stronger bright-line rules for regulatory takings prevented him from creating a workable majority and produced "precedent heavy on strong rhetoric yet light on staying power." It's not an accident there's a book of his opinions called Scalia Dissents. So, perhaps paradoxically, a liberal nominee who demonstrates less ideological fervor, but is more strategic and conciliatory, might be more successful at moving the Court leftward.


[Adam Mossoff, guest-blogging, May 1, 2009 at 9:46am] Trackbacks
The Sewing Machine War -- Howe v. Singer (Part 2 of 2):

Singer’s newspaper advertisements were carefully worded to avoid claiming that he was not infringing Howe’s patent, because there was no question that the Singer Sewing Machine, invented in 1850, infringed Howe’s 1846 patent. Singer’s newspaper advertisements thus reveal that he undertook the same arduous and expensive task that many defendants in patent infringement lawsuits attempt today: He sought to invalidate Howe’s patent by uncovering “prior art” that would undermine Howe’s claim to originality in his invention. The previous inventions and uses of the eye-pointed needle by European inventors were of no use to Singer, because Howe claimed as his invention the novel and useful combination of the eye-pointed needle and a shuttle in creating a lockstitch. Singer thus began looking for someone who had invented this unique combination of elements in the sewing machine.

Singer first attempted to uncover prior art in the patent offices in England, France, and, of course, the United States, and he even went so far as to argue that sewing machine had been invented in China long ago, but this was all to no avail. Singer’s efforts proved fruitless until he discovered Walter Hunt, a prolific American antebellum inventor. Hunt claimed to have invented a sewing machine that used an eye-pointed needle in combination with a shuttle carrying a second thread that produced a lockstitch, and that he had done this in 1834 — approximately ten years before Howe invented his own sewing machine! The problem was that Hunt had never commercialized his invention, nor had he applied for a patent for his discovery.

In 1853, Singer bankrolled Hunt in his efforts to rediscover his once-forgotten invention, and Hunt seemed to have hit pay dirt when he found some “rusty and broken pieces of metal” in an attic of the workshop at which Hunt worked in 1834. In 1853, Hunt had difficulty in recreating a working sewing machine from these nineteen-year-old remnants, but Singer provided Hunt with some legal and technical advisors, including William Whiting. As a lawyer recalled the scene years later in another patent suit, Whiting “was brought to bear upon the parts of the old carcass,” and, “after the lapse of many days, informed Mr. Hunt what he might have done, and Mr. Hunt ... agreed, and subsequently insisted, that that was just what he did do.” With Hunt’s rebuilt sewing machine as evidence corroborating his act of invention in 1834, Singer seemingly had within his grasp the prior art necessary to invalidate Howe’s 1846 patent.

In the fall of 1853, Hunt applied for a patent on his sewing machine invention, claiming an invention date of 1834. His patent application was not received well at the Scientific American, which leapt to Howe’s defense against what it saw as a pretender to the sewing machine throne. The magazine opened its October 1, 1853 article on the subject with this telling remark: “There never was a useful invention of any importance brought before the public to which there was not more than one who laid claim to be the inventor.” The magazine then republished Hunt’s lengthy advertisement in the New York Tribune from September 19, 1853, which declared, in part:

TO THE PUBLIC — I perceive that Elias Howe, Jr., is advertising himself as patentee of the Original Sewing Machine .... These statements I contradict ... Howe was not the original and first inventor of the machine on which he obtained his patent. He did not invent the need with the eye near the point. He was not the original inventor of the combination of the eye-pointed need and the shuttle, making the interlocked stitch with two threads, now in common use. .... I have taken measures ... to enforce my rights by applying for a patent for my original invention. ...

The Scientific American denounced Hunt’s belated patent application in no uncertain terms, saying that it was “opposed to such rusty claims,” and that “it has rather an ugly appearance to set up ten years’ prior claims to the lock stitch and eye-pointed needle.” It called for a quick legal resolution of this controversy “in order that the ear of the public may not be used as a kettle drum on which to beat the loudest tones for personal purposes.”

What followed was an extensive trial at the Patent Office to determine who had the legitimate claim to the patent on the lockstitch (this proceeding is called an “interference” in patent law terminology). The interference proceeding was reported to have involved “hundreds of pages of sworn testimony” proffered on behalf of Hunt’s claims to being the original inventor of the lockstitch produced from a combination of an eye-pointed needle and shuttle. At the end of this lengthy and complex trial, Patent Commissioner Charles Mason ruled on May 24, 1854 that Howe was entitled to his patent.

Interestingly, Mason acknowledged that Hunt had invented the elements of the sewing machine that later constituted Howe’s patented invention, but he concluded that Hunt committed laches (“sleeping on his rights”) in waiting eighteen years after his date of invention before filing his patent application. In patent law terminology, Commission Mason found that Hunt had “abandoned” his invention after 1834, and thus lost his right to receive a patent. Hunt’s abandonment was particularly salient given that another inventor, Howe, had brought the same invention public by patenting it in the interim.

In his decision, Commissioner Mason wrote: “When the first inventor allows his discovery to slumber for eighteen years, with no probability of its ever being brought into useful activity, and when it is only resurrected to supplant and strangle an invention which has been given to the public, and which has been made practically useful, all reasonable presumption should be in favor of the inventor who has been the means of conferring the real benefit upon the world.”

Hunt then appealed Mason’s decision to the Circuit Court of the District of Columbia, asserting a whole slew of legal issues, including even that Mason lacked statutory authority to decide an interference action on the basis of abandonment. In an extensive opinion analyzing all points of Hunt’s arguments, Circuit Judge Morsell soundly affirmed Commissioner Mason’s decision.

Hunt was technically correct that the patent statutes in force at that time did not specifically authorize Commissioner Mason to decide an interference action on grounds of abandonment. Judge Morsell’s opinion, however, followed long-established judicial practice in the antebellum era in construing the patent statutes broadly in favor of the property rights secured to patentees. For further discussion of how patents were broadly secured as property rights in the antebellum era, see my 2007 article, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in Historical Context.

Hunt’s loss in the interference action had an immediate impact in Howe’s ongoing legal contest with Singer. Howe quickly filed lawsuits in Boston against firms selling Singer Sewing Machines, and, as before, he sought preliminary injunctions. In his decision on Howe’s request for a preliminary injunction, Judge Sprague acknowledged the “earnestness and zeal with which the contestation has been carried on” in this case and in the many other legal actions. Following a lengthy review of the arguments against Howe, Judge Sprague ultimately concluded: “There is no evidence in this case, that leaves a shadow of doubt, that, for all the benefit conferred upon the public by the introduction of a sewing machine, the public are indebted to Mr. Howe.”

The defendants in the Boston litigation again argued that Hunt had anticipated Howe’s invention, despite Hunt’s earlier defeat in the interference action before Commissioner Mason. After carefully analyzing the evidence of the reconstruction of Hunt’s invention in 1853, Judge Sprague coolly remarked that “[p]rophecy after the event is easy prophecy.” Judge Sprague thus ruled Howe’s patent valid and infringed, and he issued a preliminary injunction. The Boston firms settled with Howe, who then promptly filed lawsuits directly against Singer in federal courts in New Jersey and New York, requesting injunctions.

At this point, the historical record is a bit muddled as to what happened next. One historian claims that I.M. Singer & Co. was ordered to pay Howe $15,000 in damages, but there is no extant court decision confirming this report and it is likely incorrect. In the nineteenth century, equity courts issued injunctions and law courts ruled on damages, and thus Howe would not have received a damages award in his petition before a court of equity for an injunction. (The separate equity and law courts in the federal judiciary were merged into a single court system with the enactment of the Federal Rules of Civil Procedure in 1938.)

Other historians have written that I.M. Singer & Co. settled with Howe on July 1, 1854, agreeing to pay Howe $15,000 to settle their dispute. This is probably what in fact happened. In addition to the $15,000 settlement, Singer further agreed to pay Howe a $25 royalty, consistent with Howe’s other license agreements, for each Singer Sewing Machine produced thereafter.

The end of the long-running legal dispute between Singer and Howe in 1854 did not mark the end of the Sewing Machine War. To the contrary, it lead to an explosion in patent litigation among all the sewing machine patent-owners. Thus, what followed was the descent of the Sewing Machine War into a full-scale patent thicket. I will discuss this part of the story in my next blog posting.


Alleged Anti-Semitic Incident at UC Santa Barbara:

L.A. Times:

Controversy has erupted at UC Santa Barbara over a professor's decision to send his students an e-mail in which he compared graphic images of Jews in the Holocaust to pictures of Palestinians caught up in Israel's recent Gaza offensive.

The e-mail by tenured sociology professor William I. Robinson has triggered a campus investigation and drawn accusations of anti-Semitism from two national Jewish groups, even as many students and faculty members have voiced support for him.

The uproar began in January when Robinson sent his message — titled "parallel images of Nazis and Israelis" — to the 80 students in his sociology of globalization class.

The e-mail contained more than two dozen photographs of Jewish victims of the Nazis, including those of dead children, juxtaposed with nearly identical images from the Gaza Strip. It also included an article critical of Israel's treatment of the Palestinians and a note from Robinson.

"Gaza is Israel's Warsaw — a vast concentration camp that confined and blockaded Palestinians," the professor wrote. "We are witness to a slow-motion process of genocide."

Two Jewish students dropped the class, saying they felt intimidated by the professor's message. They contacted the Simon Wiesenthal Center, which advised them to file formal complaints with the university.

In their letters, senior Rebecca Joseph and junior Tova Hausman accused Robinson of violating the campus' faculty code of conduct by disseminating personal, political material unrelated to his course.

Various national Jewish groups have gotten involved to condemn Robinson's alleged anti-Semitism.

Here's my take.

First, in the absence of further context, this is not an anti-Semitic incident. As I've written before, it is inherently ignorant and appalling to claim that Israel is Nazi-like in its treatment of Palestinians, but while anti-Semites can be condemned as appalling ignoramuses, not all appalling ignoramuses are anti-Semites. It's clear from his website and writings that Robinson is prone to similarly puerile views on other issues.

Second, the Jewish organizations that suggested that Joseph and Hausman file a complaint against Robinson are teaching Jewish students to be victims. ["I just want to bring awareness," said Hausman, 20. "I want people to know that educators shouldn't be sending out something that is so disturbing." Bleh!]

What the students should have done is stay in the class and challenge Robinson. It would not be very difficult to send a return email showing how appallingly ignorant it is to compare Gaza to the Warsaw Ghetto, or to provide their classmates with some context to explain Israel's position on the war in Gaza. Even if the students were afraid this would affect their grade, surely they could have done this before dropping the class. If, as Robinson claims, "the whole nature of academic freedom is to introduce students to controversial material, to provoke students to think and make students uncomfortable," surely he would have welcomed a scholarly response from his students. If he didn't, then the students would have a much better case that he was engaging in indoctrination. (And it's not at all clear that he would, given that his website states that he is a "scholar-activist" who attempts "to link my academic work to struggles in the United States, in the Americas, and around the world for social justice, popular empowerment, participatory democracy, and people-centered development." Sure sounds like he is more interested in promoting his political views that in promoting critical thinking.)

Third, and contrary to Robinson's protestations, this is not an issue of academic freedom. The email that Robinson sent seems to have nothing to do with the class at issue, the Sociology of Globalization, the syllabus for which can be found here. Thus, the underlying legal/ethical issue is not one of academic freedom, but of whether a professor has the right to regale a captive audience of students with his political views on issues that are at best remotely related to class. There is obviously no such right. Nevertheless, in general, I don't think this should be punished by a university, in part because it would create all sorts of complex line-drawing problems. But if there indeed is a code of conduct at the university prohibiting the professor from disseminating unrelated political material to his students, and Robinson is being investigated, or even gets punished for doing so, I don't see why this would be a violation of academic freedom. Academic freedom does not mean that a professor gets to say whatever he wants, in whatever context he wants!

Fourth, there is a clear double standard at universities regarding material that makes Jewish students uncomfortable and that makes other minority students uncomfortable. Imagine, for example, that Prof. Robinson had sent out (a) a link to the Geert Wilders film criticizing Islam, along with a personal note stating that he thinks that Islam is the greatest threat to world peace and stability; (b) an article about homosexual sexual practices, criticizing them for spreading disease globally, along with a note that he personally finds such practices abhorrent; or (c) and perhaps most analogous, an article about crime in South Africa, juxtaposing images of white crime victims in South Africa with images of lynching victims in the American South, with a personal note that he thinks that the apartheid regime was better than the current South African regime. And let's assumed that Muslim, gay, or black students similarly complained about Robinson's abuse of his authority. How many of Robinson' current defenders of his "academic freedom" would publicly defend him in those circumstances? I'd venture to say, virtually none. And it's more than a little ironic that many of those who are the first to defend any professor accused of anti-Semitism with regard to Israel are among those who, along with their ideological compatriots, created and supported the culture of political correctness and "sensitivity" that pro-Israel activists are taking advantage of.

UPDATE: "California Scholars for Academic Freedom", a leftist group defending Prof. Robinson, claims that Prof. Robinson's email was protected by academic freedom because "the information that Prof. Robinson sent was certainly relevant for a course on global issues." This is quite dishonest. The course was not one on "global issues," which implies that it was about current international controversies. It was a course on the Sociology of Globalization. The email was neither about sociology, nor globalization, nor any topic covered in the syllabus, but a completely extraneous political commentary by the professor on a topic he felt strongly about, but had nothing to do with his class. I'd be happy to post a better defense, if one exists, of the idea that this is an academic freedom issue, if someone from CSAF would like to send one.

FURTHER UPDATE: As for the rather hasty charge of anti-Semitism, while it's unfortunate, it's hard to feel that much sympathy for the kind of person who in 2006 in effect accused everyone who opposes illegal immigration of racism. Given that Robinson is so quick to level such exaggerated charges about racism, his being accused of anti-Semitism may be both unjust and poetic justice at the same time.


Al-Marri Pleads Guilty To Providing Material Support to a Foreign Terrorist Group: News here; he's facing up to 15 years, although he will get some amount of time served deducted from that. And so the issue of the lawfulness of his military detention goes away, or at least becomes a problem for another day.

Talking Points Reminders: With the news that Justice Souter is retiring, it might be a good time remind everyone of their talking points for the months ahead.

Republicans first:
The Supreme Court is losing a Republican nominee who has often been a swing vote. He has been a one-case-at-a-time jurist in the tradition of Justice Harlan. We need to be very careful about shifting the Court too far to the left, turning back the clock to the 1960s. Balance is essential, and Obama should nominate someone who was essentially a centrist like Justice Souter.
Democrats next:
President Bush stocked the Supreme Court with extreme conservatives like John Roberts and Samuel Alito. The Supreme Court hasn't had a a real progressive in decades, and it is time to have just one to balance out the Four Hoursemen of Scalia, Thomas, Roberts and Alito. Besides, Justice Souter has been a reliable liberal vote, and another liberal vote won't actually change the outcome of any cases. Balance is essential, so Obama should nominate some who will balance out the court's conservatives.
Did I miss anything? Feel free to add additional talking points in the comment thread.

Ed Prado For the Supreme Court?: With the news that Justice Souter is retiring, and with thoughts turning to his possible successor, I'm reminded of the "independent grassroots campaign" -- headed by a group of liberal activists -- that received some attention in 2005 to urge the President to nominate Fifth Circuit Judge Ed Prado for the Supreme Court.

  I admit I was dubious about the effort back in 2005. But I've been thinking about it a lot in last 4 years -- or at least in the last 4 minutes, since learning that Souter is going to retire -- and I think it's high time to take that campaign seriously.

  You may recall that this group made its compelling case as follows:
A Supreme Court Justice for All Americans

Imagine a Supreme Court nominee with a mainstream approach to the law who has earned the respect of both Republicans and Democrats. Imagine a nominee for the Supreme Court of unquestioned stature with decades of judicial experience.
Stop imagining. . . Meet Judge Ed Prado.

. . . Judge Prado has earned bi-partisan support as an extremely intelligent, moderate, fair-minded jurist in his 20 years on the federal bench.

Advise President Bush and your Senators to put an experienced moderate on the Supreme Court. Send them a message TODAY!
  Now, I realize that some people figured that the DraftPrado movement was a cynical effort by liberal activists who actually didn't want a moderate. The cynics will say that Prado was the most liberal person with some GOP connections that the "grassroots" organizers could find, and they wanted to make Bush's actual nominees seem more conservative by comparison to lessen their chances of confirmation.

  But zoiks, people, do we really need to be so cynical about Supreme Court comfirmation battles? For shame, for shame. I think we should take these grassroots activists at their word. Indeed, I can only assume that whatever anyone said about the Supreme Court vacancies in 2005 will be exactly their position in 2009. Given that, there is obviously a significant grassroots movement to get Ed Prado on the Supreme Court, and I hope Barack Obama is listening to the movement. Stop imagining . . . Meet Judge Ed Prado.

[Adam Mossoff, guest-blogging, May 1, 2009 at 12:04am] Trackbacks
The Sewing Machine War -- Howe v. Singer (Part 1 of 2):

Elias Howe certainly played a key role in the Sewing Machine War in the 1850s. An article in the August 1867 edition of The Galaxy magazine reported that “the secret of Mr. Howe’s success” was that “he litigated himself into fortune and fame.” But the Sewing Machine War was not a story of a single aggressor, Elias Howe, pitted against the sewing machine manufacturing world. Howe certainly fired the first shots, and his litigation against I.M. Singer & Co. was the most lengthy and extensive, but he was not the only plaintiff. In fact, within a few short years after he filed his initial lawsuit against Singer, Howe found himself named as a defendant in the many lawsuits that were being filed by and against sewing machine patentees and manufacturers.

What is perhaps more surprising is the degree to which the Sewing Machine War exhibited many features of a patent thicket and ancillary policy concerns, such as “patent trolls” and the proliferation of satellite litigation. As I noted in my first post (Who Cares About the Invention of the Sewing Machine?), Howe was a non-practicing entity, i.e., a patent-owner who is not actively commercializing his own intellectual property. In modern parlance, Howe was a “patent troll.” Although the “troll” slur has proven exceedingly difficult to define with precision, an oft-cited feature is that the patent-owner makes money solely through royalties obtained through infringement litigation (or threats of litigation). If exacting royalties from manufacturers in the face of infringement lawsuits is a defining characteristic of a “patent troll,” then Howe certainly was a “patent troll” — pioneering these tactics well over one hundred years before this rhetorical epithet was even coined.

Shortly after his return from England in 1849, Howe inspected some of the new sewing machines that were now on sale and he concluded that they infringed his 1846 patent. Regardless of what other features these new sewing machines may have exhibited, they all used an eye-pointed needle in combination with a shuttle carrying a second thread to create a lockstitch. These were the three elements claimed in Howe’s 1846 patent. Since he was destitute, Howe required an investor to finance his patent infringement lawsuits, and he at last convinced George W. Bliss to invest in his litigation strategy (as well as purchase a one-half interest in Howe’s patent from a previous financial backer, George Fisher, who had not realized any return on his investment). At this point, as one historian puts it, Howe was ready to undertake what would be “his main preoccupation — indeed, his main occupation — for the next several years: namely, suing the infringers of his patent for royalties.”

The moment when Singer came within Howe’s sights was when Howe witnessed a demonstration of a Singer Sewing Machine — by none other than one of Singer’s sons — in a storefront window in New York City sometime in late 1850. Howe quickly contacted Singer, asserting that the Singer Sewing Machine infringed Howe’s 1846 patent. In the ensuing negotiations, Howe demanded a $2,000 royalty payment from I.M. Singer & Co., but the firm had not yet had any success in selling its new sewing machine and thus it did not have the monies to pay Howe. Singer’s characteristically hotheaded nature asserted itself, he argued with Howe, and then he “threatened to kick him down the steps of the machine shop.” The negotiations thus ended, and George Zieber later observed sardonically that “Mr. Howe lived to be thankful for the exhibition of Singer’s amiable disposition on that occasion.”

Howe returned in 1851 and again asserted his patent rights and demanded recompense from I.M. Singer & Co. This time Howe requested $25,000 for a license to settle the dispute. (This amounts to approximately $645,500 today.) Singer again demurred. Singer’s attorney, and new business partner, Edward Clark, wrote in an 1852 letter that “Howe is a perfect humbug. He knows quite well he never invented anything of value. We have sued him for saying that he is entitled to use of the combination of needle and shuttle . . .” It is unclear if I.M. Singer & Co. had in fact sued Howe at this point, but Clark would soon rue such sentiments.

(Edward Clark became a central figure in Singer’s company as a result of some business machinations by Singer in 1851. Given Singer's fractious nature, his dealings with his business partners reads like a plotline for a soap opera. After his invention of the sewing machine in the fall of 1850, Singer repeatedly terrorized his first two business partners, George Zieber and Orson Phelps, with his trademark temper. He ultimately cajoled them both out of the business in 1851, and he went so far as to take advantage of Zieber during Zieber’s convalescence from an illness. Compared to the monies Singer would eventually make on his sewing machine, Singer paid Zieber and Phelps a mere pittance for their share in the business. Singer then formed a formal business partnership with Edward Clark in 1851, who had been and continued to serve as the attorney representing I.M. Singer & Co. in its legal contest with Howe.)

With his newfound financial backing, Howe now made good on his threats, and he promptly sued I.M. Singer & Co. and several other sewing machine manufacturers for patent infringement. Howe’s suit against Lerow & Blodgett was the first that came to trial in late June 1852, and after three weeks, in which it was reported at the time that the “case was very closely contested,” Judge Sprague ruled in Howe’s favor on July 12, 1852. Howe quickly obtained preliminary injunctions against Singer and the remaining defendants.

For many sewing machine firms, this was too much to handle and they began to settle and accept Howe’s terms. On May 18, 1853, Howe granted his first license to Wheeler, Wilson & Co., and shortly thereafter other manufacturers caved and paid Howe for the use of his patent rights. On September 3, 1853, the New York Daily Tribune reported that Howe had granted licenses to five sewing machine firms; in addition to Wheeler, Wilson & Co., Howe had licensed Lerow and Blodgett, the American Magnetic Sewing Machine Co., Bartholf, Nichols & Bliss, and Woolridge, Keene & Moore. These sewing machine manufacturers were now paying Howe $25 for each sewing machine they produced.

By 1853, the last firm standing against Howe was I.M. Singer & Co., and their legal battle soon spilled out into the newspapers. On July 29, 1983, Howe published the following newspaper advertisement:

The Sewing Machine — It has been recently decided by the United States Court that Elias Howe, Jr., of No. 305 Broadway, was the originator of the Sewing Machines now extensively used. Call at his office and see forty of them in constant use upon cloth, leather, etc., and judge for yourselves as to their practicality. Also see a certified copy, from the records of the United States Court, of the injunction against Singer’s machine (so called) which is conclusive. ... You that want sewing machines, be cautious how you purchase them of others than him or those licensed under him, else the law will compel you to pay twice over.

On the same page of the newspaper in which Howe’s legal notice appeared, I.M. Singer & Co. published the following competing advertisement:

Sewing Machines — For the last two years Elias Howe, Jr., of Massachusetts, has been threatening suits and injunctions against all the world who make, use or sell Sewing Machines .... We have sold many machines — are selling them rapidly, and have good right to sell them. The public do not acknowledge Mr. Howe’s pretensions, and for the best reasons. 1. Machines made according to Howe’s patent are of no practical use. He tried several years without being able to introduce one. 2. It is notorious, especially in New-York, that Howe was not the original inventor of the machine combining the needle and shuttle, and that his claim to that is not valid ... Finally — We make and sell the best SEWING MACHINES ....

Howe responded to Singer’s advertisements by accusing Singer of committing libel. Howe published further advertisements, declaring: “CAUTION. ALL PERSONS ARE CAUTIONED against publishing the libelous advertisements of I.M. Singer & Co. against me as they will be prosecuted to the fullest extent of the law for such publications.”

Howe followed through with these threats, too, and he promptly filed suit against the New York Daily Tribune for publishing the alleged libel by Singer. Howe’s libel suit was too much even for the Scientific American, which was a solid supporter of Howe’s rights as the first American inventor of the sewing machine that produced a lockstitch. On August 20, 1853, the magazine opined: “We do not think that Mr. Howe is justified in suing the ‘Tribune’ for libel, but neither was it right for that paper to permit the advertisement of Singer, containing, as it did, such pointed and offensive language.”

The Scientific American also used this opportunity to condemn the state of patent litigation in the federal courts: “This case affords another illustration of the defectiveness of our United States Chancery Courts with their miserable old and complicated slow machinery. ... Among the many new inventions which are still wanting to benefit mankind, we recommend inventors to try their genius and skill in improving our United States Courts in patent trials.” This is a surprising complaint if only becaues it is almost identical to the complaints heard today about the state of modern patent litigation.

Throughout the ongoing contest between Howe and Singer, the other sewing machine manufacturers who had taken out licenses were now supporting Howe insofar as they had made substantial investments in ratifying Howe’s patent rights. This situation led one anonymous, albeit pro-Singer, correspondent to write in another newspaper:

All the other manufacturers had yielded to Howe . ... They viewed the contest between Howe and I.M. Singer & Co. much as the traditional frontiersman’s wife regarded a terrible struggle between her husband and a grizzly, merely remarking that ‘it didn’t make much odds to her which won, but she allus [sic] loved to see a right lively fight.

Singer’s infamous temper also raged against Howe and the firms that had settled with him; Zieber later described how Singer “raved to put his foot upon the neck of Howe.” Given the potentially large fortune at stake in the lawsuit, combined with a sense of personal indignation at being challenged as an inventor, neither Singer nor Howe budged from their respective aggressive litigation stances. Soon I.M. Singer & Co.’s profits and energies were almost entirely consumed with its legal battle with Howe.

UPDATE: This post ended up being too long, and so I've decided to break it up into two postings. Check out Part 2 for the rest of the story on Howe v. Singer.


Thursday, April 30, 2009

Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter:

The MSNBC story on liberal Justice David Souter's likely retirement states that his departure "isn't likely to change the court's liberal-conservative composition, because his successor will almost certainly be moderate to liberal." The Washington Post similarly reports that "Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is certain to replace the liberal-leaning justice with someone with similar views." More generally, we often hear claims that the appointment of new justices whose interpretive philosophy is similar to those they replace is relatively unimportant because it won't affect the balance of the Court.

This conventional wisdom is wrong. It ignores the fact that the newly appointed justice will likely serve for many years to come, during which time the composition of the rest of the Court will change. Today, the average Supreme Court justice serves for over 26 years. Over such a lengthy tenure, there is likely to be turnover among the other justices, and the current appointee's ideology may have a major impact on the balance of power over the long run even if its immediate effect is insignificant.

For example, let's assume that Justice Souter's replacement always votes exactly as Souter himself would have. So long as the rest of the Court remains the same as today, nothing will change. However, if Obama is then able to replace even one of the five more conservative justices, the balance of power would become very different than it would have been had Souter been replaced by a more conservative justice than himself. What would have been a 5-4 conservative majority will become a 5-4 liberal one. Justice Antonin Scalia, for example, is 73 and could eventually be replaced by a liberal Obama appointee - especially if Obama wins reelection in 2012. Moreover, Souter's replacement will likely serve for decades to come. So Scalia's possible replacement by an Obama appointee is just one of many events that could happen during the tenure of Souter's successor that could make his or her ideology extremely important.

In theory, if Scalia is replaced by a liberal in 2012 and Souter himself remains on the Court, the ideological balance will be exactly the same as if Souter were replaced by a younger ideological clone of himself in 2009. However, the "younger" part is a key distinction between the two. Souter's replacement is likely to be much younger than he is, and will therefore probably be around a lot longer than Souter would have been had he chosen not to retire this year. Thus, he or (more likely) she will be affecting the Court's ideological balance for many years longer than Souter would have been able to do.

For these reasons, Souter's replacement will matter a great deal even if he or she has little immediate impact on the ideological balance on the Court.

Related Posts (on one page):

  1. How Souter's Replacement Could Change the Court:
  2. Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter:
  3. Souter Retiring:
  4. The Missing Souter Clerks:

Crystal Ball A Little Bit Off: The news that Justice Souter has informed President Obama of his intent to resign reminds me of a post I wrote on election night back in November:
[Orin Kerr, November 5, 2008 at 1:03am] Trackbacks
A Prediction about the Next Move on the Court:
At the end of the OT08 Term, in late June 2009, Justice David Souter informs President Barack Obama that he is resigning from the Supreme Court. A month later, President Obama nominates Elena Kagan, currently the Dean of Harvard Law School, to replace him.
Rats, my timing was way way off. The crystal ball was saying Souter would inform Obama in late June, not late April. Can't trust those crystal balls, I guess.

  UPDATE: Incidentally, my favorite hint that Souter was retiring, other than the law clerk bit, was Justice Ginsburg's comment about the official Supreme Court photograph back in March:
Justice Ruth Bader Ginsburg told law students Friday there could be an opening on the Supreme Court soon but didn't hint at who might be leaving. Ginsburg, who spoke at New England Law's annual "Law Day," said the nine justices only take pictures together when a new member is added. "We haven't had any of those for some time, but surely we will soon," she said.


Souter to Retire: Well that was fast --- as Jonathan notes below, it seems that Justice Souter is going to retire at the end of the Term. This NPR story suggests that Souter's retirement is known because he has notified the White House of his plan, which would give the White House time to nominate Elena Kagan someone in time for the nominee to be confirmed and up and running before the new Term starts.

  I should also say, kudos to Justice Souter for how he went about the process (at least as best we can tell from what we know). He didn't hire clerks just to try to keep speculation down, and he didn't wait until the last day of the Term to notify the White House. A class act.

Souter Retiring:

NBC News is reporting that Justice David Souter is, in fact, planning to retire, either at the end of this term or when his successor is confirmed.

UPDATE: More from the AP:

Justice David Souter has told the White House that he will retire from the Supreme Court at the end of the court's term in June, a source familiar with his plans said Thursday night.

The source spoke to The Associated Press on condition of anonymity because he was not authorized to speak for Souter. . . .

National Public Radio reported that Souter will remain on the bench until a successor is confirmed.

The Supreme Court declined to comment on the report.


Two friends of Justice Souter, 69, said Thursday night that he had often spoken privately of his intentions to be the court's first retirement if Mr. Obama won the election last fall. He has told friends that he looked forward to returning to his native New Hampshire while he was still able to enjoy climbing mountains and other outdoor activities.


Heavy Boots:

My 2/3 post reminded me of the heavy boots story (though of course I can't vouch for its accuracy), which Bob King e-mailed me about just a few days ago.


Bankruptcy Cramdown Bill Defeated in Senate:


The proposed “cram-down” amendment to a housing bill was defeated today in a 51-45 vote, with 12 Democrats among the 51 opponents. The measure needed 60 votes to pass over Republican objections. The House passed its version 234-191 on March 5.


John Engelman's Challenge on Dartmouth's Speech Code:

Yesterday I mentioned Peter Robinson's letter to The Dartmouth, along with my promise to respond to the challenge of Dartmouth Alumni Association official John Engelman '68 "to produce a copy of 'speech code.'" As promised, I penned a response that was scheduled to appear in The Dartmouth newspaper tomorrow. Unfortunately, before it was actually published there, I sent a copy to my friend George Leef at Phi Beta Cons who was planning a post on this issue and who, who printed it there this morning so now The Dartmouth won't run it.

So here's the letter:

In his April 29 contribution, John Engelman challenges me "to produce a copy of [Dartmouth's prior] 'speech code.'"

I accept his challenge.

The website of the Foundation for Individual Rights in Education — experts on campus speech codes — substantially documents the actions and policy statements by Dartmouth administrators that originally led Dartmouth to be classified with a "red light" or "poor" rating on speech and why it subsequently upgraded Dartmouth to one of only a handful of colleges and universities in America with a "green light" rating (see

As FIRE stated in a February 2005 letter to Dartmouth Trustee T.J. Rodgers,, referring to a letter in 2001 by President Wright, "The May 10, 2001, letter, if issued by the president of a public university, would constitute an unconstitutional speech code."

That policy was rescinded just months later and the punishment meted out has been reversed. Dartmouth now has a green light rating on free speech from FIRE, an accomplishment for which I give President Wright (and T.J. Rodgers) great credit.

Perhaps — as Mr. Engelman suggests — FIRE simply imagined the actions and statements at Dartmouth that led to the original "red light" rating and perhaps it then later imagined that these initial imaginary restrictions had been lifted, thereby earning Dartmouth a "green light" rating.

Or perhaps it is Mr. Engelman, not I, who is "play[ing] fast and loose with the facts."

Todd J. Zywicki Professor of Law Editor, Supreme Court Economic Review George Mason University School of Law

As if there were any doubt at all on this, the folks at the Foundation for Individual Rights in Education (FIRE) have now weighed in with a thorough, comprehensive history of the whole affair. FIRE's case is extensive and well-documented. Here's the conclusion:

In sum, Engelman's contention that Dartmouth did not maintain a speech code is the real "canard." Prior to 2005, Dartmouth maintained policies that restricted protected speech.

The Missing Souter Clerks: Mark Sherman of the AP has a story about the apparent absence of law clerks hired by Justice Souter for next Term, and what this means for the likelihood that Justice Souter is retiring. We're all just speculating, of course. Those who say don't know, and those who know don't say. For a range of reasons, I tend to be in the camp guessing that this is a significant signal, and that Souter is likely to announce his retirement at the end of the Term. But then we'll know soon enough either way.

  Hat tip: How Appealing.

FCC v. Fox Television Stations, Part I: The Late, Great George Carlin.

"I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." That's Cher, during the 2002 Billboard Music Awards, aired live on Fox. And here's Nicole Richie in the 2003 Billboard Music Awards, also aired on Fox: "Why do they even call it 'The Simple Life'? Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."

Viewers complained to the Federal Communications Commission, and in 2006, the FCC issued Notices of Apparent Liability for these two broadcasts and others, in which it explained that the expletives at issue were indecent. This was a change of course for the FCC, which previously hadn't gone after isolated expletives.

On Tuesday, the Supreme Court released its opinion in FCC v. Fox Television Stations, upholding this change of policy against an administrative-law challenge. Scalia wrote the opinion, and the quotes above, including the asterisks, are courtesy of him. (There's a First Amendment challenge in there somewhere, but the Court didn't reach it this time around.)

This is a potentially important administrative law case; Jonathan Adler has already blogged about the effects of the ruling on the Obama Administration's regulatory initiatives, and Eugene has blogged about Scalia's use of "glitteratae" and F-Word capitalization. I've decided to put up a series of posts giving the Deep Background of the case, from the original FCC policy and its litigation to the new FCC policy and its litigation, taking a detour through administrative law along the way to check out the standards for judging administrative agencies' changes of course. This will help to evaluate the various opinions in the Fox Television case.

So we'll begin in 1972, when the late, great George Carlin delivered his "Seven Words You Can Never Say on Television" routine. The live monologue appeared on his 1972 album Class Clown and, in revised form, on his 1973 album Occupation: Foole. (The 1973 version was recorded live at the now-defunct Circle Star Theater in San Carlos, California.) You can read a transcript of the routine here, and learn not only the seven words, but also the three auxiliary words! You can also watch similar versions of the monologue, say, here or here. I find it a bit over the top, but it definitely has funny bits, especially when you're not just reading the transcript.

UPDATE: I've corrected WBAI's frequency.


Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe."

2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe.

3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means.

4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe."

5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?)

6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe."

The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened.

Related Posts (on one page):

  1. "Reasonable Regulation of Speech":
  2. Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:
  3. Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

FIRE on Petition Trustees at Harvard and Dartmouth:

A thorough and insightful post on the blog of the Foundation for Individual Rights in Education (FIRE), "Harvard and Dartmouth Oppose Petition Candidates and Independent Trustees."

Dr. Roy Poses at Health Care Renewal has more here.

Town Officials and Journalists Unclear On Fractions:

Cape Cod Times reports:

[Headline:] Truro zoning decision hinges on single vote

Voters narrowly approved one of four zoning amendments late Tuesday night at the annual town meeting. But town officials were still looking at the exact vote count on that article yesterday.

In a vote of 136 to 70, voters passed a new time limit on how quickly a cottage colony, cabin colony, motel or hotel can be converted to condominiums....

The exact count of the vote — 136 to 70 — had town officials hitting their calculators yesterday. The zoning measure needed a two-thirds vote to pass. A calculation by town accountant Trudy Brazil indicated that 136 votes are two-thirds of 206 total votes, said Town Clerk Cynthia Slade.

Brazil said she used the calculation of .66 multiplied by 206 to obtain the number.

But using .6666 — a more accurate version of two-thirds — the affirmative vote needed to be 137 instead of 136, according to an anonymous caller to town hall and to the Times.

Slade said that she called several of her colleagues to see how they calculate a two-thirds vote, and the answer varied widely. In Provincetown, Town Clerk Doug Johnstone uses .66. But Johnstone said he'd never had a close vote where it might matter.

A spokesman from the Secretary of State's office was not available to comment yesterday.

Slade said she will let the state Attorney General's office decide on the correct count, as part of their normal review of town meeting decisions....

Now let's be careful here, since there are so many problems here that it's easy to miss some. (I assume, by the way, that the article is correct in saying that a two thirds vote is required to pass the amendment, which the Truro Charter seems to confirm.)

1. Voters didn't "narrowly approve[]" the amendment; they narrowly disapproved it. It doesn't matter what the town official says; 136 is not 2/3 of 206. [UPDATE: The reporter e-mails me, in response to a query, "the article is considered to have passed by town meeting. but it will be reviewed (as all general and zoning bylaw articles are) by mass. attorney general before it is enacted." But whatever the town authorities might have said, the voters didn't narrowly approve the amendment — their vote fell short of the legally required 2/3.]

2. The affirmative vote needed isn't 137, since 2/3 of 206 is 137.333..., which means 137 is less than 2/3 of 206. The affirmative vote needed is 138.

3. Therefore, the zoning decision didn't "hinge[] on [a] single vote" — even if the one vote had changed, so the total would be 137 to 69, still not 2/3. To pass with 206 people voting, two voters would have had to switch sides.

4. I realize this item is a bit pedantic, but .6666 isn't a more accurate version of two-thirds. There is only one 2/3, not multiple versions. .6666 is a more accurate approximation to 2/3 than is .66.

5. If you need to calculate 2/3 on a calculator, there's no need to choose an approximation of two-thirds — you can just multiply by 2 and divide by 3.

6. But beyond this, who needs "an anonymous caller to town hall and to the Times," or even a calculator here? If you need 2/3 ayes (and assuming, as the article does, that this is 2/3 of those who cast a vote, not 2/3 of those present), then the only question is whether there are at least twice as many ayes as nays. 136 is less than two times 70, so 136 is less than 2/3 of the total.

7. It's not just one town, but two! And the answers in different towns "varied widely," so who knows what else is going on there?

8. They need the state Attorney General's office to multiply 2/3 in Massachusetts.

9. Finally, the best part — this was supposedly done by the town's accountant. Hey, a lawyer I could understand, but shouldn't the accountant be the one person who knows better?

Thanks to Adam Bonin for the pointer.


Wall Street Journal Article on "Blight" Condemnations:

Today's Wall Street Journal has an article on the debate over "blight" condemnations:

U.S. Supreme Court rulings on property law don't often serve as clarion calls to wide swaths of the population. But most rulings aren't Kelo v. City of New London.

States long have had the power to condemn private property for such purposes as building highways or bridges. But in the 2005 Kelo ruling, the court held that governments also can take property for the purpose of promoting "economic development," a broader justification than the court had previously allowed.

The ruling led to a widespread backlash, with more than 40 states passing laws in recent years aimed at limiting the power of so-called "eminent domain," including measures to remove "economic development" as a justification for seizing property.

But in many states the effort to blunt the impact of the Kelo ruling has proven elusive, say some property-rights advocates and academics. The problem, they say, is that many states still authorize the seizure of property that is deemed "blighted," a term often defined so broadly that it enables "virtually any property to be condemned," says Ilya Somin, a professor at George Mason University School of Law.

As a result, property-rights advocates say, states should adopt legislation that redefines blight . . .

The article does a good job of discussing how extremely broad definitions of blight can lead to the condemnation of property that isn't dilapidated in any real sense and poses no danger to the public. I discussed this issue in more detail in this 2006 Legal Times op ed. I am also glad that the author draws attention to the fact that such broad definitions persist in many states that have enacted post-Kelo reforms that supposedly ban "economic development" takings, a phenomenon I documented in Part II of this forthcoming article.

I wish, however, that the WSJ had also noted some of the ways in which takings in genuinely blighted areas can also be problematic. As I noted in the Legal Times article linked above, since World War II hundreds of thousands of people - mostly poor minorities - have been forcibly displaced by "blight" and "urban development" takings. In most cases, these people were left even worse off after the condemnations than before, and often the economic harm caused by the takings outweighed any gains.

The fact that an area is blighted may justify some form of government intervention to alleviate the problem. But that doesn't mean that the right solution is to condemn the property and forcibly displace those who live and work there. This omission in the WSJ article is partly my fault. I should have done more to focus the reporter's attention on this aspect of the issue when he interviewed me.


[Adam Mossoff, guest-blogging, April 30, 2009 at 11:46am] Trackbacks
The Incremental Invention of the Sewing Machine (Part 2 of 2)

Despite the Old World efforts at inventing a sewing machine (discussed in Part 1), it was a series of American inventors, working in the 1840s and 1850s, who succeeded in threading the needle in creating the first practical sewing machine. Confirming Alex de Tocqueville’s observation that “the Americans always display a clear, free, original, and inventive power of mind,” it was American tradesmen and machinists who recognized that a practical and successful sewing machine could not simply replicate the motion of human hands. With this pragmatic approach to innovation, antebellum Americans easily made the conceptual leap from hand-motion to machine-motion, and thus proceeded to invent (and re-invent) the necessary elements that constituted the first practical sewing machine.

Beginning in the early 1840s, several American inventors received patents on sewing machines or sewing machine components, including George H. Corliss (who later achieved fame with his invention of the Corliss steam engine), but these turned out to be of little significance. It was not until 1843 that Elias Howe, Jr. invented his version of the sewing machine, which was then followed by a series of independent inventions and follow-on improvement inventions that ultimately produced the first fully functional and successful sewing machine in 1850. Howe is also personally responsible for launching the Sewing Machine War a few years later, which is a fitting symmetry that secures for him a foundational role in sewing machine history.

Impoverished and suffering ill health for much of his life, Howe was working as an apprentice of little consequence in a machine shop in Boston in 1839 when he overheard an inventor and a businessman talking about how a sewing machine could not be made. As later recounted by Howe, the inventor asked, “‘Why don’t you make a sewing machine?’ ‘I wish I could,’ said the capitalist; “But it can’t be done.’” The “capitalist” then told the inventor that, if he could invent a sewing machine, “I’ll insure you an independent fortune.” Although having received no formal schooling in natural philosophy or mechanics (a common trait of most American inventors of the day), Howe was impressed by this remark and he began thinking of the problems entailed in creating a sewing machine.

In 1843, he began working on the invention in earnest, hoping to become as wealthy as the capitalist had promised. By the fall of that year, he at last invented a sewing machine, although it would take a few more years of tinkering to improve its performance and to confirm its functionality. A few years later, he filed for a patent, which issued on September 10, 1846, claiming the use of an eye-pointed needle in combination with a second thread carried by shuttle to create a lockstitch. The Scientific American promptly published the patent claims on September 26, 1846, under the heading “New Inventions.” Howe’s three elements formed the core of the Singer Sewing Machine that would eventually sweep the United States in the 1850s.

It is difficult to understand in the abstract how a sewing machine makes a lockstitch, especially if one has never operated a sewing machine. The Wikimedia Commons has an animated gif that shows how a lockstitch is made, click here. The diagram below also details step-by-step how a lockstitch is made with an eye-pointed needle and a shuttle carrying a second thread (just click to expand):

Howe’s sewing machine, of which the patent model “is acknowledged to be one of the most beautiful ever presented to the Patent Office,” was a feat of engineering.

It sewed 250 stitches per minute — seven times faster than sewing by hand. Yet firms and the buying public had been disappointed too often by earlier inventors claiming to have solved the sewing machine problem; thus Howe’s attempts at commercializing his invention were met with a resounding defeat by a skeptical business world and wary consumers.

They were not entirely wrongheaded in rejecting Howe’s sewing machine, as it did have some faults, some of which were described in a subsequent patent issued to John Bradshaw in 1848. For instance, Howe’s sewing machine used a vertical surface, which did not permit easy passage of the clothe past the curved eye-pointed needle. Also, the curved eye-pointed needle, which moved horizontally against a vertical surface, was brittle and often broke. Lastly, the mechanism for feeding the clothe through the vertical sewing machine, called a “baster plate,” made it impossible to either sew in a single continuous motion or to sew curved seams. Howe’s invention was pivotal in terms of his combination of three elements — an eye-pointed needle, a shuttle, and the creation of a lockstitch — but it was not yet a fully practical sewing machine. In October 1846, Howe set off for England to try to convince British tailors of the importance of his invention, and he would not return to the United States until 1849, having failed miserably in his efforts and even poorer than he was when he left.

During Howe’s sojourn in England, American inventors continued to apply themselves to the problem of creating a functional sewing machine. In 1849, John Bachelder began tinkering with another sewing machine that had been patented earlier that year by Charles Morey and Joseph B. Johnson. Bachelder obtained an improvement patent on Morey and Johnson’s invention, which claimed several additional elements of the successful sewing machine, including a horizontal table for holding the clothe, a vertical, reciprocating eye-pointed needle, and a more functional feeding mechanism for moving the clothe through the sewing machine. Bachelder did not manufacture his sewing machine; rather, he later sold his patent to Singer, who brought it into the Sewing Machine Combination in 1856. This patent, according to one report, “eventually became one of the most important patents to be contributed to the Sewing Machine Combination.”

Later in 1849, another inventor, Sherburne C. Blodgett, received a patent on a “rotary sewing machine,” which used a revolving shuttle in making the lockstitch. Unlike Howe and Bachelder, however, Blodgett joined forces with J.H. Lerow and began manufacturing the sewing machine, which soon came to be known as the “Lerow & Blodgett machine.” This sewing machine was ungainly, and, even worse, prone to failure. It was a Lerow & Blodget sewing machine on which Singer would experiment in making his own inventive contributions several years later, and one of Singer’s business partners, George Zeiber, complained about the low quality of the Lerow & Blodgett machine: “Of a hundred and twenty completed machines, only eight or nine worked well enough to use in the tailor’s workrooms,” and of those a fellow business partner “was constantly being called on to repair them.”

By 1850, the combined inventive work of Howe, Bachelder, and Blodgett reached a critical mass, which prompted two more inventors to put the finishing touches on the final complete invention of a fully practical sewing machine. The penultimate inventor was Allen B. Wilson, who, according to one article, “must be awarded the highest meed of praise as an inventor, and for the ingenuity displayed in constructing and improving the sewing-machine.” Wilson received a total of four patents on sewing machines, which issued between 1850 and 1854. Many of these patents were central to the innovation of sewing machines made for home use, which had to be lighter and easier to use than the industrial variants being invented in the 1840s and early 1850s.

Foreshadowing the Sewing Machine War that was right around the corner, Wilson also had the unfortunate distinction of being the first sewing machine patentee threatened with litigation for infringing another sewing machine patent. After Wilson invented a double-pointed shuttle in 1848, A.P. Kline and Edward Lee, the owners of the Bradshaw patent, threatened Wilson with a lawsuit for infringing their patent. Lacking the funds to defend himself, Wilson sold his patent rights in this invention to Kline and Lee to settle the dispute. In 1851, Wilson partnered with Nathaniel Wheeler, and the two formed the firm, Wheeler, Wilson & Company, which began manufacturing sewing machines on the basis of Wilson’s three subsequent patents. It also soon entered the fray in the Sewing Machine War, and would become one of the members of the Combination in 1856.

The American inventor who at last completed the development of the sewing machine was Isaac Merritt Singer. Singer was an irascible fellow who lived a very colorful life; he was a polygamist who married at least five women over his lifetime, lived at times under false names, fathered at least eighteen children out of wedlock, and whose violent temper often terrorized his family members, business partners and professional associates. Yet Singer was also a brilliant businessman with an innate sense of mechanics and a strong financial motivation. As he liked to quip, he was interested only in “the dimes, not the invention.”

It was perhaps this motivation that caused him to relent to the request of his two business partners, George B. Zieber and Orson C. Phelps, to try his hand at improving the Lerow & Blodgett machines that were constantly breaking down in Phelps’s Boston workshop. On September 18, 1850, Singer, Zieber and Phelps entered into a contract, which provided that Singer would “contribute his inventive genius towards arranging a complete machine,” that Zieber and Phelps would assist financially in the work, that Phelps would provide the sums necessary “to obtain a patent,” and that “said patent shall be the equal property of the three partners to this agreement, each owning one-third thereof.” Singer thus set to work on improving the sewing machine.

The breakthrough for Singer occurred approximately two weeks later. Singer later testified in one of the patent infringement lawsuits about his act of invention, which he claimed occurred after having “worked at it day and night, sleeping but three or four hours a day out of the twenty-four, and eating generally but once a day, as I knew I must make it for forty dollars, or not get it at all.” Among the various defects in the preceding sewing machines, including the curved eye-pointed needle that was brittle and easily breakable, the Lerow & Blodgett machine’s rotating shuttle also caused the thread to unravel, making the thread more prone to break as well.

Singer corrected these problems by replacing the curved needle with a straight needle that was positioned vertically rather than horizontally. He also replaced the rotating shuttle with a reciprocating shuttle. Unfortunately, at that point, the sewing machine would still not sew what Singer referred to as “tight stitches.” With the assistance of Zieber, he struggled with this last-remaining issue, and, in his words, then “it flashed upon me” what he needed to do to make the sewing machine work. (This is surprisingly similar rhetoric to that used by Morse in describing his own “flash of genius” in conceiving of the telegraph.) At this point, the problem was simply one of tension in the thread as it was fed by the spool to the eye-pointed needle. After fixing this last problem, he then produced “five stitches perfectly,” after which, he testified, he “took it to New York and employed Mr. Charles M. Keller to patent it.”

Singer’s sewing machine was invented in September 1850, and his patent ultimately issued on August 12, 1851. Singer never pretended that he invented the sewing machine ex nihilo, and his patent confirms this. His invention was an improvement on pre-existing sewing machines, such as the Lerow & Blodgett machine on which he worked in Phelps’s workshop.

Specifically, Singer claimed and described a sewing machine in which the clothe rested on a horizontal table underneath an overhanging arm containing a vertical, reciprocating, straight eye-pointed needle. The eye-pointed needle was synchronized with a reciprocating shuttle carrying a second thread to make a lockstitch in the clothe, which was held in place by a presser foot as it was stitched. A pedal provided continuous motion to the sewing machine through a series of drive belts, which now made it possible for a sewing machine operator to exert seamless control over the continuous movement of the clothe. Moreover, with the synchronization of the shuttle and needle, which produced the necessary tension in the thread for continuous sewing in straight and curved lines, the invention now contained all ten elements necessary for a practical and commercially successful sewing machine. The ultimate utility of Singer’s final improvements was irrefutable: A trained seamstress could sew by hand 40 stitches per minute, and whereas Howe’s machine could sew up to 250 stitches per minute, Singer’s machine could produce 900 stitches per minute.

In their contract governing the invention and patenting of their sewing machine, Singer, Zieber and Phelps had agreed to call it the “Jenny Lind Sewing Machine,” after a famous Swedish opera singer who had taken the country by storm in the mid-nineteenth century. After the sewing machine was invented, however, they identified it simply as the “Singer Sewing Machine.” They published their first newspaper advertisement on November 7, 1850, with a large headline in bold, capital letters, SEWING BY MACHINERY. Addressing their advertisement to “Journeyman Tailors, Sempstresses [sic], Employers, and all others interested in Sewing of any description,” they touted that the “Singer & Phelps’ Belay-stitch Sewing Machine, invented by Isaac M. Singer and manufactured by Singer & Phelps, no. 19 Harvard Place, Boston, Mass., is offered to the public as a perfect machine ....” They ballyhooed that “much labor and study has been expended upon it by the inventor,” and offered a one-year warranty that the machine would run “without repairs.” They further bragged in the lengthy eight-paragraph advertisement: “From 500 to 1500 stitches, according to the fabric operated upon, may be taken per minute.”

On the same day as this advertisement appeared in the newspaper, the Boston Daily Times reported on the invention of the Singer Sewing Machine. The Times observed that the “machine can be worked by any woman of common intelligence ... and is in fact, the prettiest, simplest and most effective result of mechanical skill that we ever saw.”

Given the difficulties with the previous sewing machines invented by Howe, Blodgett, and the many others that had come before them, such declarations were not hyperbole. The Singer Sewing Machine did indeed work as advertised.

Unfortunately for Singer, Howe had returned from England in April 1849, and he quickly discovered that the American public was swept up with a newfound interest in the labor-saving potential of sewing machines. As one historian writes: “Mechanics had read of his [Howe’s] device or seen it demonstrated, and had turned their hand to producing something similar. The Lerow and Blodgett machine which had been the basis for Singer’s improvements was one such piece of work.” In late 1850, Singer had not heard of Howe, but the casual chain of incremental innovation that linked Howe to Singer was very real. As a result, Howe would soon unleash a torrent of litigation against Singer and others that would ultimately culminate in the Sewing Machine War in the mid-1850s.


DoJ to Examine Google Books Settlement:

The Justice Department has opened an inquiry into the proposed Google Books settlement. At the same time, the federal judge overseeing the proposed settlement has extended the deadline for authors to opt out as well as for other interested groups to file briefs with the court. So perhaps this settlement will get the scrutiny it deserves.

Related Posts (on one page):

  1. DoJ to Examine Google Books Settlement:
  2. The Google Book Settlement:
  3. Beware the Google Book Settlement?

Ending the Cocaine Sentencing Disparity:

The Justice Department supports elimination of the sentencing disparity between powder and crack cocaine.

Lanny A. Breuer, the new chief of the criminal division, told a Senate Judiciary subcommittee that the Obama administration would support bills to equalize punishment for offenders convicted of possessing the drug in either form, fulfilling one of the president's campaign pledges.

Breuer explicitly called on Congress to act this term to "completely eliminate" the sentencing disparity.

The issue has received attention from both political parties, but until now, top law enforcement officials have not backed legislative reforms, according to drug control analysts.

"Now is the time for us to reexamine federal cocaine sentencing policy, from the perspective of both fundamental fairness and safety," Breuer told the subcommittee on crime and drugs. He said the issues would be among those considered by a Justice Department panel that within six months is to develop recommendations on an array of topics related to charging, sentencing and prisoner treatment.

This is quite welcome, and further evidence that the new Administration is bringing a modicum of rationality to drug policy.


Obama Administration to Revise State Secrets Doctrine:

Earlier this week, the U.S. Court of Appeals rebuffed the Justice Department's assertion of the state secrets doctrine in an effort to dismiss a lawsuit against a company that allegedly facilitated the CIA's extraordinary rendition of several individuals. The decision in Mohamed et al v Jeppesen Dataplan, Inc. is here.

Last night, President Obama indicated an intention to revisit the state secrets doctrine and narrow is application. In response to a question at his press conference, Obama said:

I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Interestingly enough, the President's comments echo Orin's assessment from February. Stay tuned.

Related Posts (on one page):

  1. Obama Administration Continues to Defend State Secrets:
  2. Obama Administration to Revise State Secrets Doctrine:

Is Atheist Activism Increasing?

The New York Times had an interesting article a few days ago, claiming that atheist activism has increased in recent years:

More than ever, America’s atheists are linking up and speaking out . . .

They are connecting on the Internet, holding meet-ups in bars, advertising on billboards and buses, volunteering at food pantries and picking up roadside trash, earning atheist groups recognition on adopt-a-highway signs.

They liken their strategy to that of the gay-rights movement, which lifted off when closeted members of a scorned minority decided to go public.

Much of the evidence of increased atheist activism the article gives is anecdotal. The one systematic data point is evidence indicating that there are now many more atheist student groups than there were earlier in the decade. Unfortunately, the article also relies on the 2008 American Religious Identification Survey, which shows a major increase in the percentage of Americans who say that they that are not affiliated with any religion (up to 18% of the US population, compared to 10% in 1990). However, as I explained in this post, not affiliating with any religion is not the same thing as being an atheist. In the same ARIS survey, only 2.3% of respondents say that "there is no such thing as" God and 5.7% that they are "not sure." Thus, it is far from clear that the NY Times article is correct in suggesting that the 18% of Americans who are unaffiliated with any religion constitute a large potential reservoir of support for atheist activism.

Despite these caveats, I would not be surprised if atheist activism really has increased in recent years. Throughout modern history, increases in education and wealth have tended to promote secularization, which in turn increases the proportion of atheists in society (even though not all secularists necessarily deny the existence of God). As the Times suggests, atheist activism has likely increased as a reaction to the activities of the religious right. The rise of radical Islamism has also stimulated atheist activism by lending credence to claims that religious belief leads to violence and oppression. I don't think any of the above actually constitutes evidence for the truth of atheism. The fact that the religious right and radical Islamists are wrong about various issues does not in and of itself prove the nonexistence of God; and obviously, adherents of a variety of secular ideologies also have committed numerous wrongs. However, the rise of the religious right domestically and radical Islamism abroad has probably led atheists to engage in more activism than they would have otherwise.

Finally, as I emphasized in this article, atheist activism is needed to counteract the false but widespread impression that (shared by about 50% of the public), that being an atheist means that you reject all morality and have no values.

On this latter point, the Times is correct to draw an analogy to the gay rights movement. Just as the more effective gay activists have sought (with some success) to persuade the public that being gay is not an immoral perversion that undermines "family values," so atheists must dispel the deeply rooted belief that if you don't believe in God, you necessarily reject all moral values. Increases in education, secularism, and societal tolerance make this a more realistic goal than ever before.


The Ninth Circuit's Second Amendment Ruling in the News -- Or Not:

So I thought that the Ninth Circuit's holding that the Second Amendment binds state and local governments (via the Fourteenth Amendment) was a pretty big deal. It was the first federal court of appeals decision to so hold. If followed, it would invalidate the Chicago handgun ban, plus perhaps some other broad state and local gun restrictions, such as New York City's ban on all gun ownership by 18-to-20-year-olds. And it might well trigger Supreme Court consideration of the issue, since there's now a split between the Second and Ninth Circuits on the issue.

But here's the odd thing: I couldn't find any articles about this in the New York Times, the L.A. Times, the Chicago Tribune, or the Washington Post. (I searched for second amendment or bear arms or nordyke or gun show.) There was early coverage on CNN and in the San Francisco Chronicle, but nothing else in any newspapers in the NEWS;MAJPAP file on LEXIS. Am I missing some stories that just didn't happen to use the keywords I searched for? Or is the court decision just not worth even a brief mention?

UPDATE: A comment by PubliusFL reminded me to check what newspapers said about earlier decisions in this case.

It turns out that when the California Supreme Court upheld the ordinance against a state preemption challenge, the L.A. Times and the San Jose Mercury News covered this (Apr. 23, 2002). When the Ninth Circuit rejected a Second Amendment challenge on the grounds that the Second Amendment secured only a collective right -- simply following past Ninth Circuit precedent on this score, and echoing the views of most circuit courts -- the L.A. Times and the San Jose Mercury News covered this (Feb. 19, 2003). But this time, when the Ninth Circuit becomes the first circuit court to hold that the Second Amendment applies to state and local governments, no coverage.

Most other major papers (except the St. Louis Post Dispatch, Feb. 19, 2003 and the Chicago Tribune, Apr. 23, 2002) apparently didn't cover those earlier decisions. That's understandable, since at that point the decisions were of mostly local concern, given that they followed the then-dominant view of the Second Amendment (the 2003 decision) or were focused on California preemption law (the 2002 decision). But now the Ninth Circuit breaks new ground, in a decision that might influence litigation throughout the country (since circuit decisions tend to have some persuasive weight even outside the circuit) and that might prod the Supreme Court to consider the issue. I would have thought that this at least would merit some coverage from the New York Times, the Chicago Tribune (especially given the possible effect on the currently pending Chicago handgun ban litigation), the Washington Post, and the like. And certainly it seems to merit coverage from major California papers, such as the L.A. Times and the San Jose Mercury News, especially given that they covered earlier and seemingly less important decisions in the case.


What Is the Proper Role of Alumni in College and University Governance?: My co-blogger Todd has had a series of posts on college and university governance in the last few weeks, and in particular on the question of the role of trustees and the influence of alumni. Todd's posts in part reflect his own unique experience as an alumni trustee at Dartmouth. I'm more interested in the broader question: What role should alumni have over the direction of a university?

  I particular, imagine a lot of alumni at a particular university think their university is going in the wrong direction. How much power should they have to influence the institution? Obviously alumni have influence in their giving: Many universities depend on alumni giving, and alumni who respond with their wallets or the lack thereof will have the university's attention. But should there be a larger role for alumni?

  I haven't really thought much about these questions; my candid answer is, I don't know. But I would be interested in reader responses to these sorts of questions. I ask in part because it's not obvious to me that alumni should have a lot of influence. Perhaps they should, but I think that's a case that has to be made rather than assumed. What do you think?

Wednesday, April 29, 2009

Economics and International Law of Flu Pandemics--

David Brooks praises what he calls the “decentralized approach” to the swine flu crisis, arguing that it is better for nations to respond to the flu on their own, albeit with the loose coordination made possible by informal scientific and medical networks, than for some monster world agency to impose a centralized solution to the problem. The World Health Organization is far from being such an agency—fortunately, in Brooks’ mind. Brooks writes as though we could have a centralized agency if we wanted but that we have wisely opted for a more decentralized approach. In fact, it is doubtful that we could have such an agency but if we could it would be better if we did. Our current system is very much a second best, and it’s wrong to treat this failure of international cooperation as though it resulted from wise, conservative self-restraint on the part of nation states rather than the limits of the state system.

One might start by asking why international law might be needed in the first place. No state benefits from a flu outbreak and so it might seem that states’ interests converge and they would take adequate prevention, detection, and containment measures without any pressure from international law. However, this view, which seems to Brooks’, turns out not to be true. A state does not fully internalize the costs of a flu outbreak. If the outbreak is severe enough, individuals may carry the infection across borders and cause outbreaks in other countries. This suggests that states will take inadequate precautions from the standpoint of global welfare.

In particular, states can do three things to minimize the risks of a pandemic. First, they can invest in prevention measures, including building health clinics in remote rural areas (where outbreaks often occur because of the degree of contact between humans and animals), inoculating people when suitable vaccines are available, and, in other ways, promoting health, nutrition, and sanitation. Second, states can invest in detection and control measures: training doctors and nurses to recognize the symptoms of the flu, to test for it, and to send information to national health authorities, who can then implement an appropriate response, including vaccination and quarantine. Third, states can disclose the outbreak to the rest of the world, which enables other countries to protect their citizens—such as by cutting transportation links and (where relevant, not here) imports of contaminated food.

Clearly, states—and we are mainly talking about developing states here, because in those states human-animal mingling is most prevalent—have inadequate incentives. As much as they may wish to avoid epidemics, they have other uses for funds as well, and will be unlikely to take account of the benefits to other countries from strong prevention, detection, and control measures at home. But the main problem is disclosure to the rest of the world. Developing nations suffer greatly if other countries restrict migration and exports. They are thus tempted to delay disclosing epidemics in the hope that they can be controlled locally. This is what happened with China and SARS in 2003, and it appears that Mexico may have repeated this pattern though it is not yet clear. Given the speed with which a person, and hence the disease, can travel around the world on a jet airplane, short delays in disclosure of an outbreak can have devastating consequences. Indeed, other countries may overreact to information about disease outbreaks and cut links prematurely.

What can be done? Let us start with the optimal response. In an ideal world, states would enter a treaty in which they agreed to take the globally optimal prevention, detection, control, and disclosure measures. Because the developing world would incur most of the costs (because they are the main sources of influenza), and the developed world most of the benefits, such a treaty would probably involve a substantial side payment from the rich to the poor. In particular, countries like China and Mexico would commit to investing greater resources in prevention, detection, and control; and they would also commit to alert other countries the moment that an outbreak is detected. Other provisions would require the pooling of medical expertise, the stockpiling of vaccines and a system of distribution, and perhaps a central agency that would coordinate the global response. Indeed, an optimal (but unimaginable) regime would authorize the agency to order countries to shut their borders and take other measures as necessary, with severe penalties to be imposed on states that fail to obey those orders.

The current international legal regime emphatically falls short of this ideal. WHO has virtually no power to compel a state to do anything. It can collect information—if states cooperate—and it can make recommendations that governments are free to ignore. Nonetheless, WHO seems to be highly respected and the system works well within its limits. How can this be so when there is no international law that compels states to give information to WHO or follow its advice?

The answer is that WHO can offer states something they want—expertise and assistance. A developing nation faces a tradeoff when it decides whether to disclose an outbreak. It gains assistance from WHO, which helps it protect its own citizens, but it risks being isolated by other states. The tradeoff need not cause the state to take the optimal action, but at least the state has stronger incentives to disclose the outbreak than it would if the carrot of assistance were not offered. In effect, the developed world—which supplies most of WHO’s funds—is buying disclosure. To the extent that the incentives to disclose at an early stage of the outbreak are still too weak, the developed world should seriously consider compensating the state that discloses responsibly for some or all of the costs of international isolation until the outbreak is controlled.

The problem is that the prospect of this assistance might cause developing nations to underinvest in prevention, detection, and control in the first place. WHO already does provide pre-outbreak assistance to states—its overall mission, even aside from the component of it that addresses risks of pandemic, is to improve health care in poor countries. This is one of the many ways that poor countries can benefit from being poor (having bad intellectual property laws is another) and it makes sense for them to underinvest in health, or to threaten to do so, in order to obtain greater assistance from rich states. Still, the high cost of a local outbreak limits these perverse incentives to some degree.

WHO serves another important function. It has established best practice guidelines for dealing with a disease outbreak and it issues alerts that notify governments of the severity of the outbreak and hence what steps to take. The alerts range from phase 1 (“no viruses circulating among animals have been reported to cause infections in humans”) to phase 6 (“the pandemic phase, is characterized by community level outbreaks in at least one other country in a different WHO region in addition to the criteria defined in Phase 5”). We are currently at phase 5 (“human-to-human spread of the virus into at least two countries in one WHO region. While most countries will not be affected at this stage, the declaration of Phase 5 is a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short”). Governments greatly benefit from this information and those governments with low levels of public health expertise can follow the WHO’s best practices guidelines, which benefit them as well as people in other countries.

WHO’s weak information disclosure and advisory functions have an important effect on the behavior of states because poor states enjoy private benefits from this information, and rich states are willing to finance and operate WHO because those rich states gain from the actions of the poor states. It also helps that a scientific consensus exists in broad lines about the appropriate response to a disease outbreak. This is a happy story of the success of international organizations but it also illustrates the limits of international law. An optimal system—the system that would exist if states could fully resolve collective action problems and overcome their conflicting interests—would be far more intrusive. It would have stringent laws and feature an agency that resembles domestic authorities that have draconian powers to quarantine and otherwise interfere with people’s freedoms when a disease outbreak strikes. And in international regimes where science does not provide an objective grounding for states’ interests, even the minimalist type of international cooperation illustrated by WHO won’t be possible.

More from Ken Anderson and David Fidler on swine flu and international law.


Supreme Court Justice Responds to Blog Inquiry: I guess there's a first time for everything; here's Justice Scalia responding to an inquiry from Above the Law. What I really want to see is a Supreme Court Justice guest-blogging somewhere, even just for a few posts. It would certainly make for an interesting comment thread.

Harvard: Notes from a banana republic:

Funny line in the Boston Globe's editorial this weekend, commenting on Harvey Silverglate's allegations of election shenanigans at Harvard that I mentioned last week: "Perhaps MIT and BU should send election observers to Harvard, just to be sure." HT: ACTA

N.H. legislature passes SSM bill:

State house approval came last week. Today, the state senate voted in favor, 13-11. It's unknown whether the governor will sign or veto the bill, but he has previously said he thinks the state's civil-unions law is good enough and that further progress will require federal recognition.

Protecting religious liberty as a "compromise" position on SSM is gaining traction. The swing vote in the state senate came from a Democrat who just last week voted against the bill in committee, but switched after more protection for religious liberty was added. The amendment, she said, is “respectful to both sides of the debate and meets our shared goals of equality under the state laws for all of the people of New Hampshire.” The religious-protection amendment says:

457:37 Affirmation of Freedom of Religion in Marriage. Clergy persons as described in RSA 457:31 or other persons otherwise authorized under law to officiate at a civil marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by part I, article V of the New Hampshire constitution.

(HT: Robin Wilson)

Forcing clergy to officiate at gay weddings is not an issue, as informed advocates on both sides know. Certainly forcing them to do so "in violation of their [constitutional] right to free exercise of religion" has never been on the table. This provision, on its face, restates protection already guaranteed in the state and federal constitutions. It might, I suppose, be interpreted to exempt religious objectors from the otherwise neutral requirement to officiate at any weddings recognized under state law, which might not be an unconstitutional imposition under Employment Div. v. Smith.

But even if it accomplishes that, the provision is narrower than the religious-liberty protection included in Connecticut's SSM bill last week and much narrower than that proposed last week by five prominent religious-liberty advocates. Whether any additional protection is really needed in an SSM bill, as opposed to state and federal antidiscrimination laws, is a separate question.

At any rate, congratulations to gay families in New Hampshire and to those who have been working hard in the state legislature on their behalf.


[Adam Mossoff, guest-blogging, April 29, 2009 at 5:31pm] Trackbacks
The Incremental Invention of the Sewing Machine (Part 1 of 2):

Today, the sewing machine would hardly be considered a complex invention. In our high-tech world in which pharmaceutical companies now design and construct therapeutic drugs from the protein up, or Apple Computer makes it possible to check email, update one’s calendar, surf the web, and talk on the phone all in one portable device (the iPhone), a sewing machine is downright mundane. This attitude is reinforced by the fact that few young people today have used or even seen a sewing machine, except perhaps in their grandparents' house or in a museum. Yet in the nineteenth century, the sewing machine was the equivalent of today’s new blockbuster drug or high-tech device.

Part of the problem in recognizing this basic truth about the sewing machine is that a cultural myth has arisen concerning its invention. Depending on whom you ask, you will hear that the sewing machine was invented by Elias Howe or Isaac Merritt Singer. Of course, both men played a central role in the invention and commercial development of the sewing machine in the late 1840s and early 1850s, but they were very much Johnny-come-latelies to the story. Their respective contributions brought the sewing machine to the apex of its invention as a practical and commercially viable product, which is perhaps why the public remembers only their names. The invention of the sewing machine, however, was not the creation of any single person, unlike many other antebellum-era inventions, such as Charles Goodyear’s invention of vulcanized rubber in 1839 or Samuel Morse’s self-described “flash of genius” in conceiving of the telegraph machine in 1832.

Given the basic human need for clothing, sewing has long been a skill valued by modern humans. Unfortunately, hand-sewing for long hours is extremely tedious and physically taxing, especially when clothing is demanded in mass quantities, as it was by the eighteenth and early nineteenth centuries. In Das Kapital, Karl Marx recounted the story of a milliner who literally worked herself to death as an illustration of the “vampire-like” nature of capitalists. In 1853, the New York Herald opined about the working conditions of seamstresses: “We know of no class of workwomen who are more poorly paid for their work or who suffer more privation and hardship.”

In antebellum America, Thomas Hood’s ditty, Song of the Shirt, was popular because it lamented the well-known working conditions of seamstresses:

With fingers weary and worn,
With eyelids heavy and red,
A woman sat, in unwomanly rags,
Plying her needle and thread,
Stitch! Stitch! Stitch!
In poverty, hunger and dirt;
And still with a voice of dolorous pitch —
Would that its tone could reach the rich! —
She sang this “Song of the Shirt!”

The hand-sewing trade and its workers would benefit tremendously from mechanization. As one historian remarked, “[l]ooked at in the abstract, in terms purely of ideas and markets, the sewing machine could not fail.”

Yet efforts to create a sewing machine for almost a century did repeatedly fail. The difficulties that plagued the invention of the sewing machine were essentially two-fold. One was mechanical, and the other was conceptual, but these two issues were interrelated.

With respect to the mechanical issue, the invention of a practical and commercially successful sewing machine comprised ten complementary elements. These ten elements were first explicitly identified by Andrew Jack in an oft-cited 1958 article: (1) the sewing of a lockstitch, (2) the use of an eye-pointed needle, (3) a shuttle carrying a second thread, (4) a continuous source of thread (spools), (5) a horizontal table, (6) an arm overhanging the table that contained a vertically positioned eye-pointed needle, (7) a continuous feed of the clothe (synchronized with the needle motion), (8) tension controls for the thread that give slack as needed, (9) a presser foot to hold the clothe in place with each stitch, and (10) the ability to sew in either straight or curved lines. The first sewing machine to incorporate all ten of these elements was the famous “Singer Sewing Machine,” which was first sold to the public in the fall of 1850. But Singer was neither the first person to invent all ten elements nor was he the first to patent them.

Many of these elements were invented and patented over the course of many decades, beginning in Europe in the mid-eighteenth century. Given the omnipresent need for clothing and the conditions of its production, it is perhaps unsurprising that the quest for a machine to do the work of hand-sewing began with the first steps of the Industrial Revolution.

In fact, there was a tremendous amount of inventive activity concerning the second element in Andrews’s list: the eye-pointed needle. This was first invented by a German mechanic, Charles F. Weisenthal, who obtained a British patent for it in 1755. Weisenthal, however, did not commercially develop his invention into a marketable product. In 1807, Edward Walter Chapman received another British patent for a banding machine that used an eye-pointed needle, but his patent was limited to only banding or belting, and thus he appears to not have seen the potential of a sewing machine in his invention. The eye-pointed needle appeared again around 1810, when Balthasar Krems, a hosiery maker in Mayen, Germany, began using this type of needle in a machine that produced a chainstitch. Unfortunately, he did not patent or commercialize his invention, and, according to one historian, the invention “died with the inventor in 1813.”

A year after Krems died, Josef Madersperger, a tailor in Vienna, Austria, invented a sewing machine for the purpose of producing embroidery. In 1839, Madersperger also invented a sewing machine that used an eye-pointed needle and a second thread to create a lockstitch (Bradshaw’s first element). Madersperger received Austrian patents for both inventions, but his machines were defective and impractical, as they lacked the other elements identified by Bradshaw, and thus they failed as commercial products. Madersperger died in penury in 1850.

Lastly, in 1841, two other British inventors, Edward Newton and Thomas Archbold, received a British patent for a tambouring machine that used an eye-pointed needle for stitching ornamental designs on gloves, but they neither intended nor used their machine and its eye-pointed needle for the general purpose of sewing.

The fundamental problem with these many independent inventions of the eye-pointed needle was primarily conceptual, not mechanical. The early efforts at using machines for sewing attempted to replicate the motions of the human hand in sewing fabric, i.e., driving a needle with a thread through a piece of fabric and then pulling the same needle back through to the other side of the fabric. In 1804, for instance, Thomas Stone and James Henderson received a French patent for a sewing machine that replicated hand-sewing motions by using mechanical pincers. Unsurprisingly, their machine was unsuccessful and saw only “some limited use.” As with the invention of the typewriter in the late nineteenth century, sewing-machine inventors needed to make a conceptual break between human-hand motion and mechanical motion.

This pivotal conceptual innovation was first made by a French tailor, Barthelemy Thimonnier. Thimonnier invented an industrial-size sewing machine in 1830 that contained many of Bradshaw’s ten elements of a successful sewing machine, such as a horizontal table and an overhanging arm containing a needle. In fact, Thimonnier is widely recognized as the first person to use a sewing machine for commercial profit; by 1841, he had eighty machines operating in his Paris shop stitching French army uniforms. But Thimonnier had an unfortunate birthright, and his shop was destroyed by a mob of French luddites. He later expressed “surprise[] ... at the amount of vilification his machine was attracting.” Unable to overcome the vociferous political and economic opposition to his invention, Thimonnier died poor without realizing any financial gain from his invention.

Two British inventors, John Fisher and James Gibbons, also made this important conceptual leap in 1844, but they saw their machine, which used an eye-pointed needle carrying one thread and a shuttle carrying another thread, as a way to produce only lace on fabric. As one historian observes, Fisher “readily admitted at a later date that he had not the slightest idea of producing a sewing machine, in the utilitarian meaning of the term.”

These Old World efforts at solving the problems in inventing the sewing machine proved fruitless. In Part 2, I will discuss how a series of antebellum American inventors succeeded in addressing both the mechanical and conceptual problems inherent in the invention of the sewing machine.


South Carolina Law Requires Students To Go To School in the Nude:

Or that's what S.C. Code § 16-23-430 suggests:

It shall be [a felony] for any person, except State, county or municipal law-enforcement officers or personnel authorized by school officials, to carry on his person, while on any elementary or secondary school property, a knife, with a blade over two inches long, a blackjack, a metal pipe or pole, firearms or any other type of weapon, device or object which may be used to inflict bodily injury or death.

Not is especially likely to inflict death, not has a substantial chance of inflicting serious or great bodily injury (terms that are indeed used in other statutes), not is usually used to inflict injury, but "may be used to inflict bodily injury." I say it again, yow.

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A Crime To Possess Scissors at Mississippi Universities?

Check out this statute, which covers the property -- including dorms -- of any university (public or private) as well as K-12 schools:

(4) It shall be a misdemeanor for any person to possess or carry, whether openly or concealed, any BB gun, air rifle, air pistol, bowie knife, dirk, dagger, slingshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), and any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction and maintenance on educational property. Any person violating this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned not exceeding six (6) months, or both.

Scissors that are "instructional supplies," or that are used solely for "instruction and maintenance," are excluded, but what about other scissors? Or anything else with a sharp point or an edge? Yow.

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Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities:

That's a new report from the Computer Science and Telecommunications Board of the National Academies (which includes the National Academy of Science and the National Academy of Engineering). I read the report in its earlier stages, and found it very interesting. (I was a coordinator on the project, which basically means that I was an outsider who was asked to review the Board's responses to the independent reviewers, and make sure that the responses were indeed responsive.) If you're interested in cyberattack law and policy, both as to cyberattacks by the U.S. government and by private entities defending themselves against cyberattacks, you should check it out. Here's a brief sense of the topic, from the Executive Summary:

Cyberattack refers to deliberate actions to alter, disrupt, deceive, degrade, or destroy computer systems or networks or the information and/or programs resident in or transiting these systems or networks. The U.S. armed forces are actively preparing to engage in cyberattacks, perhaps in concert with other information warfare means and/or with kinetic attacks, and may have done so in the past. Domestic law enforcement agencies also engage in cyberattack when they jam cell phone networks in order to prevent the detonation of improvised explosive devices.

Such matters pose some very important issues that relate to technology, policy, law, and ethics. This report provides an intellectual framework for thinking about cyberattack and understanding these issues.


Unintentional Self-Parody?

From Haaretz:

Ultra-Orthodox Deputy Health Minister Yakov Litzman on Monday declared that Israel would call the new potentially deadly disease that has already struck two continents 'Mexico Flu,' rather than 'Swine Flu,['] as pigs are not kosher.

"We will call it Mexico flu. We won't call it swine flu," Litzman told a news conference on Monday, assuring the Israeli public that authorities were prepared to handle any cases.

Under Jewish dietary laws, pigs are considered unclean and pork is forbidden food, although the non-kosher meat is available in some stores in Israel.

Naturally, according to The Guardian (UK), "Mexico's ambassador to Israel, Frederico Salas, was duly dispatched to register an official complaint over the suggestion. The move prompted a hurried retraction from the Israeli government, which insisted it had no intention of changing the name."

Mexico's action makes sense to me, since they want to minimize the taint attached to their country in people's minds — the sort of thing that could affect tourism even once the outbreak is over and tourism is safe. They have no moral or good-manners entitlement to stop people from using "Mexican flu," but it certainly makes good sense for them to try to persuade people against the name change.

But what is possibly wrong with the name "Swine Flu," even from the perspective of people whose religion tells them that pig meat is forbidden to eat (and even "unclean")? Swine flu is unclean, too. It's not like someone is attaching a bad label to something that Litzman thinks is good, or a good label to something bad. (Contrast pork producers' worry that the label would subconsciously taint their products, which they think are good.) The label stems from what is at least a suspected scientific fact — that the virus is closely related to a disease of pigs. What reasonable objection, even accepting as given Orthodox Jewish religious beliefs, can there to be calling a deadly disease by a name connected to an "unclean" animal?

Thanks to Religion Clause for the pointer.


Reason Magazine goes too far:

Reason magazine sent me an e-mail asking for comments on their new essay by Nick Gillespie and Matt Welch about Obama's first 100 days. OK, Reason, you want to know what I think? I'm personally offended by the essay.

The essay begins: "So here we are, 100 days into the great eight-year triumph of Hope over Change, a new Era of Really Good Feelings in which only one thing has become increasingly, even irrefutably, clear: President Barack Obama is about as visionary as the guy who invented Dippin' Dots, Ice Cream of the Future. Far from sketching out a truly forward-looking set of policies for the 21st century, as his supporters had hoped, Obama is instead serving up cryogenically tasteless and headache-inducing morsels from years gone by."

Well, I happen to like Dippin' Dots!

Other than the outrageous slur on Dippin' Dots consumers--in effect, a form of hate speech against lovers of highly processed food--the rest of the essay is very good. The theme is that much of the Obama 100 agenda consists of reprising various failed policy initiatives from the Jimmy Carter era. Which just makes the Dippin' Dots attack all the more inappropriate, since Dippin' Dots were invented in 1988, during President Reagan's last term.


Arkansas State Legislator Dan Greenberg on Politics:

An interesting and amusing summary of his comments to a university class. Dan is a very smart guy who tends to say the sorts of things that politicians often don't. I know him from way before he got elected, back when he was working at Heritage in 1993, and I've always much enjoyed hearing his thoughts.


Blogger reaction to Specter switch:

National Journal Online today has a collection of reactions from top political bloggers regarding Senator Specter's return to the Democratic party (which he had left in 1965). We asked to comment on both the short-term and the long-term. My comments: "Short-term: Will save the national Senate Republican old bulls a lot of money that they would have wasted in trying to rescue Specter in the Republican primary. Long-term: After the 2014 election leaves the Senate with a 50-50 split, Specter will quietly offer to switch back to Republican, on the condition that he be Judiciary Committee Chairman."


More Reaction to My Dartmouth Firing:

My fellow petition trustee Peter Robinson has some extremely kinds words on my service to the Dartmouth Board today in response to the decision by a majority of the Dartmouth Trustees to deny my reelection.

Another letter appears, from one John Engelman, Dartmouth Class of '68, which I will respond to in the pages of The Dartmouth. Suffice it to say that all of the documents that will answer Mr. Engelman's "challenge" can easily be located on the website of the Foundation for Individual Rights in Education here.

John Stossel on the Credit Card Holders' Bill of Rights:

John Stossel's syndicated column out today is a critique of the "Credit Card Holders' Bill of Rights" that was recently endorsed by President Obama. I'm a real fan of Stossel and I'm honored that his column relies on some of my work on this topic.


Judge Bybee Breaks His Silence:

The NYT reports that former OLC head Jay Bybee, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, released a statement in response to media reports that he regretted his role in drafting and approving some of the infamous "torture memos":

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Interestingly, the NYT story also includes the following statement from one of Judge Bybee's colleagues on the Ninth Circuit, Judge Betty Fletcher:

“He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.”

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Tuesday, April 28, 2009

[Adam Mossoff, guest-blogging, April 28, 2009 at 11:10pm] Trackbacks
Who Cares About the Invention of the Sewing Machine?

I first want to thank Eugene for inviting me to blog on the invention and commercialization of the sewing machine in the antebellum era. I’ve long been a consumer of the Volokh Conspiracy, and it’s quite exciting to experience it from the producer’s side. More important, I’m really looking forward to sharing my research and to receiving some valuable feedback. So, let’s jump in!

As someone who writes on topics in legal history, I often face the question: Who cares? I appreciate this question, as I’ve always believed it’s critical for an academic to connect abstract identifications to concrete reality. I will give an in-depth answer to that question at the end of my posts, after I have identified the facts of the invention and commercialization of the sewing machine that make it possible to infer lessons for the modern policy debates. For those readers who may not have a burning personal interest in the history as such, I hope this introductory posting will set enough of the modern policy context to keep you interested.

There is currently a raging debate in the patent literature about patent thickets. A “patent thicket” exists when too many patents covering individual elements of a commercial product are separately owned by different entities. This concept is not unique to patent law; it is based on Professor Michael Heller’s theory of the anticommons in real property, which arises when there is excessive fragmentation of ownership interests in a single parcel of land. According to economic theory, the problem of such excessive fragmentation of ownership interests is straightforward: It increases transaction costs, accentuates hold-out problems, and precipitates costly litigation, which prevents commercial development of the affected property.

The debate centers on whether patent thicket theory accurately explains or predicts such problems in practice, and the empirical studies produced thus far are arguably in equipoise. In speaking about anticommons theory, Professor Heller acknowledges that “the empirical studies that prove — or disprove — our theory remain inconclusive.” Nonetheless, in the patent literature and in the popular press, vivid anecdotes abound about patent thickets obstructing development of new drugs or preventing the distribution of life-enhancing genetically engineered foods to the developing world.

Given the heightened interest today amongst scholars and lawyers concerning the existence and policy significance of patent thickets, a historical analysis of the sewing machine patent thicket in the 1850s — called the “Sewing Machine War” at the time — and the denouement of this patent thicket in the Sewing Machine Combination of 1856 is important.

On one hand, it is an empirical case study of a patent thicket that (temporarily) prevented the commercial development of an important product of the Industrial Revolution. The sewing machine was the result of numerous incremental and complementary inventive contributions, which led to a morass of patent infringement litigation given overlapping patent claims to the final commercial product. The Sewing Machine War thus confirms that patent thickets exist, and that they can lead to what Professor Heller has identified as the tragedy of the anticommons.

On the other hand, the story of the sewing machine challenges some underlying assumptions in the current discourse about patent thickets. One assumption is that patent thickets are primarily a modern problem having to do with recent changes in technology and law. Professor Heller explicitly makes this point in his recently published book, The Gridlock Economy:

There has been an unnoticed revolution in how we create wealth. In the old economy — ten or twenty years ago — you invented a product and got a patent .... Today, the leading edge of wealth creation requires assembly. From drugs to telecom, software to semiconductors, anything high tech demands assembly of innumerable patents.

In fact, Professor Heller’s first foray into patent thicket theory was in assessing an anticommons in “biomedical research,” which he and his co-author, Professor Rebecca Eisenberg, saw as a logical result of extensive patenting of biotech research tools. Despite Heller’s and other scholars’ off-hand references to earlier patent thickets, the principal focus of the theoretical and empirical studies of patent thickets is on very recent inventions in high-tech and science — computers, telecommunications, and biotech.

A second assumption is that patent thickets are a property problem — too much property that is too easily acquired that results in too much control — and so they are best addressed by limiting the property rights secured to patentees. Specific proposals have called for eliminating contractual rights in patented drugs, authorizing federal agencies to terminate patent rights to avoid patent thickets, and even prohibiting the patenting biotech inventions altogether. Although the empirics have yet to confirm patent thicket theory, this has not stopped people from proposing numerous regulatory or statutory measures to redefine and limit property rights in patents.

The story of the invention and development of the sewing machine challenges these two assumptions insofar as it is a story of a patent thicket in an old technology. More important, it is a story of the successful resolution of a thicket through a private-ordering mechanism: a contractual arrangement in which patent-owners cross-license the right to use their respective patents. This cross-licensing contractual arrangement is called a “patent pool,” and it so happens that the first patent pool in United States history was the one that brought the Sewing Machine War to an end: the Sewing Machine Combination of 1856. In fact, the Sewing Machine Combination successfully coordinated the overlapping property claims in the sewing machine until the last patent in the pool expired in 1877.

As I researched the Sewing Machine War, I further discovered that this particular patent thicket is an important case study because it encompasses many other issues in patent law that are often intertwined today with concerns about patent thickets. For instance, there was massive and costly litigation between multiple parties in multiple venues. One of the patentees in the Sewing Machine War engaged in an extremely costly search for evidence of prior inventions (what patent lawyers call “prior art”) that would invalidate the other sewing machine patents. There was hard-fought and expensive satellite litigation in the courts and in the patent office. In other words, the Sewing Machine War reflected all of the concerns expressed today about an alleged explosion in out-of-control patent litigation, and yet one finds the same conditions existing in the patent system more than one hundred years ago.

Last, but certainly not least, I also discovered that the Sewing Machine War was precipitated by patent infringement lawsuits filed by Elias Howe, who was America’s first “non-practicing entity” (NPE). As an aside, commentators and judges sometimes call a NPE a “patent troll.” Interestingly, the term “patent troll” has proven extremely difficult to define with precision, and perhaps one of the lessons of the Sewing Machine War is that it is an unhelpful rhetorical epithet.

Elias Howe was a NPE, because he commercially exploited his patent by licensing sewing machine manufacturers. He also obtained injunctions against those who refused to pay him royalties, and given that Howe’s 1846 patents was valid, he obtained many of these injunctions. This is interesting, because patent scholars, as well as some Supreme Court Justices, believe that “patent trolls” arose only recently and that they are undermining the proper functioning of the patent system. Such scholars and Justices may be surprised to learn how these so-called modern problems have long existed within the historically successful American patent system.

The Sewing Machine War came to an end with the voluntary formation of the Sewing Machine Combination. In this respect, the Sewing Machine Combination reveals how patent-owners have substantial incentives to overcome patent thickets, even in contexts in which so-called “patent trolls” are exploiting the strong enforcement of the property rights in patents. The Combination was formed though pre-existing private-ordering mechanisms, such as contract and corporate law, and not through judicial decisions, PTO regulations, or statutes that limited or restricted the patent-owners’ property rights. In sum, the Sewing Machine Combination reveals the innovative ways in which patent-owners can rescue themselves from commercial gridlock, and in so doing, unleash an explosion in productivity and innovation.

In my next posting, I will discuss the invention of the sewing machine, which was an effort that took place over a hundred years (approximately from the mid-1700s to the mid-1800s). The result of this lengthy inventive process was that the sewing machine — a tremendous technological accomplishment — was developed through incremental inventive steps. By the early 1850s, the inventive contributions by so many different people over so many years resulted in a product in which there were many differing (and legitimate) property claims. This set the stage for the Sewing Machine War, and thus to understand how this thicket arose, it is necessary to identify its first cause. I will discuss this part of the story in my next blog posting.

(If anyone is interested in seeing the sources for the quotes and other factual claims in my posts, please feel free to download my paper, A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket, where you can see the sources in all their glory. As everyone who reads law journal articles knows by now, law professors love citations so much, we put them on almost every sentence, phrase and word. :) )


Is Scalia's "F-Word" Opinion Good News for Obama?

While the headlines focus on the subject matter of today's 5-4 Supreme Court ruling rejecting the broadcaster's challenge to the FCC's decision to sanction the broadcast of "fleeting expletives," the real significance of FCC v. Fox Television Stations could be the decision's impact on administrative law. As Eugene notes below, the Court avoided the underlying First Amendment question. As a consequence, the decision turned on whether the FCC's adoption of a more restrictive policy with regard to expletives during prime time telecasts was "arbitrary and capricious."

In upholding the FCC's decision, the Court appeared to reject the principle that the burden on a federal agency to justify its policy choice is greater when the agency is altering a prior policy. One effect of this decision could be that it will be easier for the Obama Administration to reverse Bush Administration policies and revise regulations adopted in the past eight years. As Dan Farber explains:

One issue in today’s case was whether the FCC needed to give a fuller explanation of its action because it was modifying existing policy. Some courts have read a prior Supreme Court case to require more evidence and explanation when an agency is shifting policy. The Court rejected this view. Justice Scalia did say that the agency must acknowledge the change of policy and must take into account any evidence that was relied on to support the previous rule. But, according to the Scalia opinion, the fact that an agency is changing course does not require a harder look at its decision by a reviewing court. A concurring opinion by Justice Kennedy blurs the holding somewhat but Kennedy did join the majority opinion as well.

Particularly given the Kennedy concurrence, today’s ruling may not be a stark change from the approach taken by lower courts in reviewing agency policy shifts. But Justice Scalia’s opinion does make such shifts by agencies easier and at least at the margins should improve the agency’s chances of surviving judicial review. Today’s decision may or may not be good administrative law doctrine. But there’s no doubt that it will make life easier for the Obama administration.

While I need to digest the opinion a bit more, I think Professor Farber is correct on both points: This decision should make things easier for the Obama Administration even if the underlying doctrine is problematic. For a variety reasons, including my belief that delegations to agencies should be cosntrued narrowly, I have thought it proper to require agencies to provide fuller explanations when changing course. In particular, I think it is reasonable to require an agency to provide a reasoned explanation for the policy change, in addition to an explanation for the new policy itself. Of course this is not necessarily all that much of an added burden, but I am inclined to believe it is the proper approach. Perhaps I'll have more to say once I've had more time to think about it.


Pontiac to Go the Way of the Oldsmobile, Geo, Oakland, and LaSalle: James Cobb offers his thoughts about the announced demise of the Pontiac brand at the New York Times Wheels Blog.

Crime Victims' Rights in Environmental Cases:

The National Law Journal has an interesting article on the use of the 2004 Crime Victims Rights Act in environmental cases.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.


Low Voltage:

The Chevrolet Volt was a complete bust for General Motors, as Charles Lane explains in today's Washington Post.

GM wouldn't be in quite so deep a hole if it had not sunk a billion dollars, and much of its corporate reputation, into a not-very-realistic plug-in electric hybrid vehicle known as the Chevrolet Volt.

Likely to cost consumers more than $30,000 even after a big government tax rebate, the little four-seat Volt "is currently projected to be much more expensive than its gasoline-fueled peers and will likely need substantial reductions in manufacturing cost in order to become commercially viable," President Obama's automobile task force reported on March 30.

Translation: Unless and until gas prices shoot up, you'd be crazy to buy one of these much-ballyhooed vehicles, which will run 40 miles on a single charge if GM can overcome difficult battery-engineering issues.

To be sure, the green-leaning Obama administration has not ruled out allowing a restructured GM to continue pouring (federal) money into the Volt. But I hope it won't. The Volt and other electric vehicles could gobble up more subsidies than ethanol.


Federalist Society Founders Win Bradley Prize:

Congratulations to the founders of the Federalist Society, who have just been announced as one of this year's winners of the prestigious (and lucrative) Bradley Prizes. Congratulations to all of the founders who were recognized (Spencer Abraham, Steven G. Calabresi, David McIntosh, and Lee Liberman Otis) as well as to longtime leaders Eugene Meyer and Leonard Leo.


Specter's Switch: Senator Specter certainly has good political reasons to switch parties, given the uphill battle he has been facing in the Pennsylvania GOP primary. Still, his departure strikes me as a significant blow for the GOP; a party that can't keep the middle is going to have a hard time getting a majority. On that score, I recommend Ross Douthat's excellent debut New York Times column, out today: Cheney for President.


I take it that's the all-feminine plural Latinate analog of glitterati, brought to us by Justice Scalia in FCC v. Fox Television. The reason for the all-feminine plural, I take it, is that the offenders at issue in these particular broadcasts were Cher and Nicole Richie. A quick Google search reveals only 8 English-language pages that used the term before the opinion came down. The search also reveals that glitterata Ann Althouse beat me to much of this observation.


Sen. Arlen Specter to Switch Parties, Give Democrats 60 Seats and Thus the Ability To Block Filibusters:

The Washington Post's The Fix blog reports. (The 60-seat majority assumes that Franken will be seated as the Minnesota senator, but that seems very likely.) Sen. Specter will be running for reelection in 2010. Rick Hasen notes that, "Whether or not Specter formally caucuses with the Democrats, if he actually hopes to win a Democratic primary and be elected, he's going to have to go along with the Democratic program this term," though also that "some conservative Democrats (such as Senator Ben Nelson) likely will hold the Democrats back from enacting a fuller agenda."

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Holy F-Word, Batman:

Derek Muller notes that Justice Scalia's majority opinion in FCC v. Fox Television uses the term F-Word, with the F and the W capitalized. (It also uses S-Word, but that is a story for another day.) Any thoughts on why this was so, he asks?

Well, it looks like the FCC used this capitalization in its original decision, and the Second Circuit quoted it; Justice Scalia may have therefore followed the FCC's lead. (Note that generally the FCC commissioners' f-word capitalization patterns are mixed.) But that still leaves us with the question why the author of the particular FCC decision capitalized F-Word.

I can't answer the "why," but I too was intrigued, and found the following pattern in Lexis's US database (which covers many U.S. newspapers):

  • (caps("F-Word") and not allcaps ("F-Word")) and date(> 1/1/2005) finds 252 uses of F-Word, so capitalized -- but nearly of these are in titles of books, TV shows, and the like, where most words would be capitalized in any event. Thus, there are nearly zero non-title uses of F-Word.

  • nocaps("f-word") and date(> 1/1/2005) finds 1805 uses of f-word, so uncapitalized.

  • ("f-word" and not caps("F-Word") and not nocaps("f-word")) and date(> 1/1/2005) finds 2682 uses of "F-word."

Searching through court decisions yields roughly comparable ratios among the three options.

So "F-word" and "f-word" are roughly equally common in recent newspapers and in recent court decisions (with "F-word" slightly predominating), but "F-Word," outside titles, is extremely uncommon -- except apparently in some FCC decisions, and from there into the Supreme Court Reports.


Senator Arlen Specter (D-PA):

The Philadelphia Inquirer is reporting that Senator Arlen Specter will switch from the Republican to the Democratic Party. This will have interesting implications for judicial nominations and the confirmation of some of President Obama's more controversial executive branch nominees.

2008 Wiretap Report: The latest annual report on the scope and nature of government wiretapping in criminal cases under the Wiretap Act is here. As always, the overwhelming majority of federal and state wiretaps were for cell phones in drug cases. The overall number of taps were down from last year, although last year the numbers were unusually high. The average cost of wiretaps remained steady overall, at $40,000 to $70,000 (the averages for state and federal wiretaps, respectively). See the report for the details.

Justice Thomas Expresses Disagreement with Red Lion and Pacifica,

the cases holding that broadcast (non-cable) television and radio are less protected by the First Amendment than newspapers and other media. (Red Lion upheld the Fairness Doctrine and the Personal Attack Rule, which would be unconstitutional as to newspapers, and Pacifica upheld a restriction on using the "Seven Dirty Words" on radio and television.)

This came in Justice Thomas's concurrence in FCC v. Fox Television, which reversed the Second Circuit's decision that set aside a fine for the use of vulgarity on a television program. But the Court's decision explicitly rested only the administrative law question — whether the FCC's judgment was within its statutory authority, especially given earlier FCC decisions to the contrary — and left the constitutional question for the Second Circuit to consider, perhaps to be reviewed later by the Supreme Court. It's thus possible that Fox will ultimately win, and get the entire scheme of restricting vulgarity on radio and television set aside, assuming of course four other Justices share Justice Thomas's view. (Recall that Justice Stevens, who voted for Fox on the administrative law question here, was the author of the Pacifica plurality, and continues to think that Pacifica was correctly decided; on the other hand, he would read it considerably more narrowly than the FCC does, and may well conclude that Fox should win on its First Amendment claim on the facts of this case.)

I might blog more when I read the case in detail later today, but for now I thought I'd note this.

UPDATE: I've changed the parenthetical about Justice Stevens; when I originally wrote the post, I hadn't read the case in detail (as the preceding paragraph notes), and hadn't noticed Justice Stevens' footnote 5. Thanks to commenter Jacob Berlove for first pointing this out to me.


Mary Ann Glendon Turns Down Honor At Notre Dame Commencement:

Paul Mirengoff has the story on Mary Ann Glendon's decision to turn down the prestigious Laetare Medal that she was to receive at Notre Dame's commencement this year:

First, as a longtime consultant to the U.S. Conference of Catholic Bishops, I could not help but be dismayed by the news that Notre Dame also planned to award the president an honorary degree. This, as you must know, was in disregard of the U.S. bishops' express request of 2004 that Catholic institutions "should not honor those who act in defiance of our fundamental moral principles" and that such persons "should not be given awards, honors or platforms which would suggest support for their actions." That request, which in no way seeks to control or interfere with an institution's freedom to invite and engage in serious debate with whomever it wishes, seems to me so reasonable that I am at a loss to understand why a Catholic university should disrespect it.

I see that an effort has arisen for Notre Dame alumni who want to withhold contributions from the Notre Dame general fund as a result of the Obama invitation. Importantly for Domers, the website stresses:

Alumni or other supporters who would like to withhold their donations from Notre Dame’s General Fund to express their feelings to the University are still encouraged to support campus pro-life organizations. These contributions will NOT go to Notre Dame’s General Fund, but will go directly to these worthy organizations. According Notre Dame’s website, these donations ARE credited to alumni’s eligibility for the football lottery.

There's got to be a joke in there about the Notre Dame football teaming showing some life, but I'll let you supply your own joke.

Notre Dame, obviously, is a mission-oriented school. And there is a clear difference between inviting a speaker to campus to give a speech and inviting a speaker to campus to be honored with an honorary degree and given a high-profile speaking platform before a captive audience. If Obama were merely being invited to speak at Notre Dame by a student group or a faculty member as part of an academic dialogue or conference, then the reaction would be wholly out of line. But those, such as Professor Glendon, who see the current invite as improper seem to me to be on completely sound ground.

This distinction between a mission-oriented university honoring a man whose views and actions have supported what the university considers to be the profoundest moral evils and giving him an honored platform from which to speak to a captive audience strikes me as the confusion in Jeff Immelt's recent contribution on the subject. Obviously there is some merit in Immelt's point that Notre Dame should feel honored to have the President speak at the university. And that should be enough to carry the day at most any university in America. But Obama's actions during his time as state legislator, Senator, President, and in his judicial appointments have also all advanced the cause of what the Catholic Church sees as nothing less than the most profound evil. Immelt seems to believe that this is just another speech in just another forum at just another university by just another person. In fact, it is none of the above. Immelt's argument that Notre Dame should feel lucky to have Obama just misses the point.

And I will confess that I burst out laughing when Immelt (my colleague on the Dartmouth Board on the rare occasions where he has actually shown up for meetings) writes, "Part of growing as a leader is to open the doors to divergent opinions, to let critics into the boardroom, and to engage diverse viewpoints and perceptions." Do as I say, Notre Dame, not as I do.

The Compact to Destroy the Electoral College:

In a recent episode of the Independence Institute's television show "Indepedent Thinking," former Colorado State Senator Ken Gordon and I debate Gordon's proposal for Colorado to join an interstate compact against the Electoral College. Parts one, two, and three. Senator Gordon, as he always does, made an excellent case in support of his point of view.

In pointing to the dangers of a close popular vote election and the attendant recount, I mentioned Kennedy-Nixon in 1960, but I should have instead cited Garfield-Hancock in 1880, where the popular margin was less then ten thousand, but Garfield won the electoral vote decisively. All the more heartbreaking, from my point of view, since Winfield Scott Hancock was, along with Ulysses Grant, one of the two major party presidential nominees who was also a President of the National Rifle Association.


Monday, April 27, 2009

More Thoughts on the Legal Barriers to a Torture Prosecution: In his post below, my co-blogger David Kopel considers some barriers to criminal prosecutions for torture of detainees during the Bush Administration. It's sort of hard to get into the details of the legal issues here because no one has been charged; the merits would depend on who was charged and for what. With that said, I did want to offer a few tentative thoughts about these issues.

  First, I think the important legal barrier to prosecution that David does not mention is the "entrapment by estoppel" defense, permitting reasonable reliance on an official statement of law -- here, the OLC opinions. How this would apply isn't entirely clear to me, as it would get into some difficult questions of what it means to reasonably rely on memos that assumed a set of facts that may have been inaccurate (such as the effect of the different interrogation methods, assumptions that were a big part of the reasoning of the memos). But that would also presumably depend on the individual prosecuted: Reasonable reliance is very fact-specific, and we would need to know exactly what the defendant knew about what OLC had said.

  The availability of an entrapment by estoppel defense would then raise all sorts of questions about classified information. Say a defendant is indicted, and his defense is that the details of the briefing he received on what he could do specifically allowed what he did. The court would need to get into questions of what information can be disclosed about this under the Classified Information Procedures Act, raising serious tensions between the due process rights of the defendant and the need to keep classified information secret.

  David raises the necessity defense as a possible defense. He writes:
My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.
  Self-defense wouldn't realistically be raised in a case of interrogation, at least barring very strange circumstances, so I think the real issue here is necessity. It turns out that the Supreme Court has not recognized a general necessity defense in federal criminal law, and the caselaw on whether and when it exists is pretty mixed. See generally Steven S. Schwartz, Note, Is There a Common Law Necessity Defense in Federal Criminal Law?, 75 U. Chi. L. Rev. 1259 (2008).

  I agree that the Supreme Court would likely recognize such a defense in the case of criminal charges for torture. At the same time, it's worth noting that the necessity defense (to the extent it exists in federal law) is actually quite narrow: It generally requires an imminent threat and no reasonable legal alternatives. See, e.g., United States v. White, 552 F.3d 240, 247 (2d. Cir. 2009). It wouldn't be enough for a defendant to say that he thought there was a risk of an eventual attack and that the enhanced interrogation techniques were on the whole a good idea.

  Finally, David mentions the Rule of Lenity and the case of Ireland v. United Kingdom. I tend to doubt either would play much of a role. The Rule of Lenity exists, but it is very in narrow in practice, Some observers would say it exists in theory but not in fact. And I'm not sure how Ireland v. United Kingdom is relevant: it is not an interpretation of U.S. law, as I understand it, and in any event it covers only some of the techniques authorized by DOJ in its memos.

  Anyway, I suspect all of this is academic. I don't expect the Obama Administration to charge anyone. And I should stress that my take on the legal issues here are tentative: I usually focus a lot more on surveillance issues than interrogation issues, so I haven't focused on the legal issues here as closely as some others. Still, I did want to offer a somewhat different take on some of the legal issues.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:

The Latest on the Petition Candidates for the Harvard Board of Overseers:

Harvey Silverglate reports from the front lines.

David Beito on Eminent Domain Abuse in Alabama:

Historian David Beito, chair of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights, has a good op ed on eminent domain abuse in Alabama. Last year, Beito and I coauthored an op ed on the negative impact of takings on minorities and the poor.

The interesting thing about the cases discussed in Beito's current op ed is that Alabama actually enacted one of the nations' strongest post-Kelo eminent domain reform laws; after passing largely toothless reform legislation in 2005, the state legislature went back and enacted a much stronger reform in 2006. The 2006 law forbids condemnations for "economic development" and also limits "blight" condemnations, such that only genuinely dangerous or seriously dilapidated properties can be condemned under that rubric. I discuss the Alabama reform law in this article, along with those passed by other states (the majority of which are ineffective).

Some of the abusive condemnations Beito describes were initiated under "redevelopment" projects that were already in place at the time the 2006 post-Kelo law was enacted. The law is not retroactive, and so it allowed those projects to go forward and continue to condemn property under the old, very broad, definition of "blight." This case, however, appears to be more recent:

What is happening in the cradle of the modern civil rights movement? Jimmy McCall would like to know. 'It was more my dream house,' he laments, 'and the city tore it down ... It reminds me of how they used to mistreat black people in the Old South.' In 1955, Rosa Parks took on the whole system of Jim Crow by refusing to give up her seat on a segregated Montgomery bus. Today, McCall is waging a lonely battle against the same city government for another civil right: the freedom to build a home on his own land.

Though McCall's ambitions are modest, he is exceptionally determined. For years, he has scraped together a living by salvaging rare materials from historic homes and then selling them to private builders. Sometimes months went by before he had a client. Finally, he had put aside enough to purchase two acres in Montgomery and started to build. . .

McCall only earns enough money to build in incremental stages, but eventually his dream home took shape. According to a news story by Benjamin Solomon, the structure had 'the high slanted ceilings, the exposed beams of dark, antique wood. It looks like a charming, spacious home in the making.'

But from the outset, the city showed unremitting hostility. He has almost lost count of the roadblocks it threw up including a citation for keeping the necessary building materials on his own land during the construction process.

More seriously, he was charged under the state blight law, which allows a municipality to designate a building as a 'public nuisance' and then demolish it. Critics have accurately called this 'eminent domain through the back door' and warn that opportunities for abuse are almost limitless. In contrast to the standard eminent domain process, for example, property owners do not have any right to compensation, even in theory.. . .

Unlike countless others in similar straits, McCall fought back and hired an experienced local lawyer. In the middle of last year, he negotiated a court-enforced agreement, which gave him 18 months to complete the home. Only a month after the agreement took effect, the city demolished the structure. Local bureaucrats, obviously in a hurry to tear it down, did not even give him notice. The bulldozers came in the same day as the court order that authorized them.

McCall appealed to the same judge who had allowed the demolition. Saying that she had been misled, the judge ordered the city to pay compensation. Montgomery has appealed and at this writing McCall has not received a cent. McCall thinks that the city intends to drag it out until his money runs out. 'I've got a lot of fight left in me, and all I want is justice,' he states.

The 2006 reform law allows local governments to condemn property that creates a "public nuisance." However, it is doubtful whether McCall's house would qualify as such. Under the Alabama Code, a "nuisance" is defined as "anything that works hurt, inconvenience or damage to another." It is possible to interpret this so broadly as to include the "inconvenience" McCall caused to the developers who apparently coveted his land. However, this would render almost any use of land a "nuisance" so long as someone else wants the property for a different purpose. In any event, Alabama law also states that "[a] public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals." It is difficult to believe that McCall's house somehow "damages all persons who come within the sphere of its operation." At most, it is a private nuisance to "one or a few individuals" who might wish to use the property for other purposes - and even that claim would be a stretch. But Alabama law does not permit the government to condemn property merely because there is a private nuisance there.

It's possible, of course, that there are some relevant other facts here that are as yet unknown to me. But the available evidence suggests that Montgomery's effort to take McCall's property violates state law. Unfortunately, the complex and difficult nature of the eminent domain process sometimes makes it hard for owners to resist even illegal takings.

Beito and McCall emphasize that, as in the past, takings disproportionately victimize lower-income African-Americans. Unlike in the 1950s and 60s, today such condemnations are rarely motivated by racism as such. Rather, low-income blacks are often targeted because of their political weakness. Local governments and politically connected developers know that they often lack the resources and influence to put up a fight. For this reason, as the NAACP explained in its amicus brief in Kelo, "[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged."


The Doctor Shortage and Universal Coverage:

The New York Times article referenced by David, highlights an important point – expanding coverage is not the same same thing as broadening access to care. Coverage initiatives focus on the financing side of the market; access is a function of both the financing and delivery sides of the market — and the shortage of primary care options can complicate efforts to broaden access by expanding coverage — with Massachusetts providing some recent evidence on the point.

For those interested in more on these subjects, I’ve just posted a new paper on “Employment-Based Health Insurance and Universal Coverage: Four Things People Know that Aren’t So.”

The article systematically evaluates four myths of American health policy:

  • Employers pay for employment-based coverage;

  • There are 45.7 million uninsured Americans;

  • Universal coverage means everyone will have access to high quality care;

  • Universal coverage will solve the cost problems of American health care.

The article is forthcoming in the Yale Journal of Health Policy, Law & Ethics.


More Memos on the Way?

Today's WSJ reports:

The Obama administration and senior national-security officials are reviewing whether to release additional Central Intelligence Agency memos on interrogation methods, White House spokesman Robert Gibbs said.

Former Vice President Dick Cheney has requested that the administration declassify additional CIA memos that he said would show the tactics worked.

Mr. Gibbs said on NBC's "Meet the Press" on Sunday that the review process would take about three weeks.


Ireland v. United Kingdom and the prosecution of Bush officials:

In all the chatter that has gone on regarding demands for prosecution of Bush administration officials under the federal torture statute, remarkably little attention has been paid to the case of Ireland v. United Kingdom--even though that case is discussed extensively in the August 1, 2002, Bybee memorandum which has been the subject of the such great controversy.

Although the memorandum has been criticized on other grounds (such as its facile assertions regarding presidential war powers), it cannot be criticized regarding its accurate presentation regarding Ireland v. United Kingdom.

That case arose from the UK's use of "the five techniques" in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a "stress position"; hooding; subjection to noise; sleep deprivation; and food and drink deprivation. In other words, quite similar to many of the techniques used by the CIA to interrogate captured terrorists.

The Grand Chamber of the European Court of Human Rights ruled that these techniques do not constitute "torture." For "although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." (Para. 168.) Instead, "recourse to the five techniques amounted to a practice of inhuman and degrading treatment." Accordingly, since Article 3 of the European Convention on Human Rights outlaws inhuman and degrading treatment, the Court ordered the U.K. to cease use of the five techniques.

Now, if you are a Department of Justice attorney analyzing the question of whether you can bring a case which will result in a conviction under the federal torture statute, you have to acknowledge numerous obstacles:

Although the Convention Against Torture, which has been ratified by the U.S. Senate, forbids both torture and "Other Cruel, Inhuman or Degrading Treatment," that treaty is implemented in U.S. domestic law by the federal torture statute, which outlaws only torture.

People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.

Now, if people want to argue that degrading treatment of captured terrorists violates some other federal law, maybe there is a case that can be made. It just strikes me as highly unlikely that a conviction could be obtained under the federal torture statute.

Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.

Of course if you want to invent your own set of facts--such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War--then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.

John Podesta's "impeach Bybee letter" appears to be unsupported on a crucial legal point:

A legal memorandum signed by Judge Bybee when he was the head of the Office of Legal Counsel and recently released by the Obama administration approved the use of cruel, inhuman, and degrading techniques, including waterboarding, slamming a detainee into a wall, depriving a detainee of sleep for up to eleven days at a time, and trapping a prisoner in a "confinement box" with insects in order to induce terror. The techniques endorsed by Judge Bybee’s memoranda violated U.S. law and our commitments under the United Nations Convention Against Torture.
It can certainly be argued that approval of the degrading techniques violated "our commitments under the Convention Against Torture." But as for the claim that the techniques "violated U.S. law," Podesta does not specify which particular law; if he's referring to the federal torture statute, his assertion that there was definitely a violation seems overstated. (Since the CAT is a ratified treaty, it can be called "U.S. law," but Podesta's phrasing seems to indicate that he is talking about something in addition to CAT itself.)

A conscientious DOJ attorney who is contemplating the possibility of a successful prosecution under the federal torture statute will undoubtedly be aware of the talking point that the Americans executed Japanese war criminals for waterboarding. Mark Hemingway has written on this topic at National Review Online. For the moment, let's put aside any factual differences in how the waterboarding was done by the Japanese and the Americans. If you follow Hemingway's links for the war criminals who were executed, and then click the "legal procedure" tab, you can find the particular crimes for which they were convicted. Some of them were convicted of crimes related to mistreatment of prisoners of war. But these convictions are for violating the laws of war. Under the laws of war, prisoners of war are not supposed to be subject to degrading treatment (e.g., wall-standing, noise) nor to torture. Accordingly, the convictions for the seven executed Japanese do not imply a legal determination that waterboarding by the Japanese constituted torture, as opposed to degrading and inhuman treatment.

If you want to make a case that it is a crime under federal law not to treat al Qaeda terrorists as lawful prisoners of war (which means that they are not even supposed to be interrogated against their will), go ahead and try. But that's going to involve a different statute (if you can find one) from the federal torture statute.

Over at the excellent international law weblog Opinio Juris, Australian law professor Kevin John Heller insists that prosecution of Bush officials would be straightforward and obvious. I suggest that it would be much much more difficult than the prosecution enthusiasts seem to admit to themselves.

It is sometimes claimed that under the CAT, prosecution is mandatory. But Article 7 of CAT states that after a referral of a matter to the prosecuting authority, "These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." Which means, in the context of the United States, that the prosecuting authority have essentially limitless discretion not to bring a case, and that discretion certainly includes choosing not to prosecute a case because of the daunting odds of obtaining a conviction.

In support of prosecuting Judge Bybee and other lawyers, Heller pens an interesting post about the Ministries case; in that case, some high-ranking German lawyers were successfully prosecuted for having approved the deportation of French Jews; the lawyers did not contest the allegation that they knew the deportations to be flagrantly illegal. To Heller, prosecuting the American lawyers is even easier than prosecuting the Nazi ones, "because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime."

Well, sure, if you think that you can prove that the American lawyers did not actually believe their own arguments. But the Ministries Case depended on the defendants not contesting the point that they knew the deporations were illegal; if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:

A Recommended Summer Read--Michael Dobbs Churchill Novels:

For my birthday this year my in-laws got me the 4 book series of historical novels by Michael Dobbs about Winston Churchill, set against the backdrop of World War II. I enjoyed them immensely. They are very enjoyable reads while also informative and insightful of Dobbs's subjective views of the major players of the era. Dobbs interweaves stories about the impact of the war on some ordinary people, which in a nice novelistic twist usually end up intersecting with Churchill's activities. Dobbs also mixes in some interesting speculations on some interesting historical events that help move the narrative along. The tone of the books is definitely pro-Churchill, although not uniformly so. I know that many of my libertarian fellow-travelers are not as enamored of Churchill as I, so I mention that here.

The first book is Winston's War, which is also the best of the lot. Three other books follow. I liked them all, although I thought that the second one (Never Surrender) dragged a little bit but the last two, Churchill's Hour and Churchill's Triumph, were strong, so keep going even if Never Surrender doesn't catch your fancy. Amazon readers also seem to like Never Surrender the least of the lot as well. I read them in the chronological order in which the action occurs (which is the order I describe above), but I'm not sure that Dobbs actually published them in that order.

Engaging summertime or general leisuretime fare for anyone whose tastes run to historical fiction of this sort.


Dawn Johnsen and the Ted Olson Precedent: Last Friday, Marc Ambinder had a post indicating that Dawn Johnsen's nomination to head the Office of Legal Counsel may be in trouble:"Vote counters believe that she is several votes shy of the 60 needed to avert a filibuster." I agree with co-blogger Jonathan Adler that Johnsen should be confirmed.

   I think the relevant point of comparison is Ted Olson, the first SG in the Bush Administration. Today, Olson is on his way to developing a reputation as something of a senior statesman in the DC legal community. But at the time of his nomination in 2001, Olson was known as a very sharply partisan figure, with a record in that score far more developed than Johnsen today. If Ted Olson should have been confirmed as Bush's SG in 2001, I don't see a principled reason why Dawn Johnsen shouldn't be confirmed as Obama's head of OLC in 2009.

  Of course, I fully realize that the Johnsen nomination is now an issue for the political world. In that world, these sorts of comparisons don't matter; the central question is who has the votes, and what long-term scores they can help settle. (Notably, the vote for Olson was a squeaker: 51-47.) And this is a world that Obama has played in himself — as witnessed by his voting against both John Roberts and Samuel Alito for the Supreme Court when Obama was in the Senate — so I appreciate that the tit-for-tat crowd has at least a plausible case here. Still, I think Johnsen is qualified for the job. On the merits, and given the deference a President is owed in his executive nominees, I think she should be confirmed.

Newspapers and Breakfast: As a brief response to Todd's post on newspapers and breakfast, I find the hypothesis unlikely: A laptop with a wireless connection is an easy substitute for a physical newspaper at the breakfast table. (I should confess that I read an actual physical newspaper so rarely that it feels like a retro experience when I do, like shaving with a shaving brush.)

Related Posts (on one page):

  1. Newspapers and Breakfast:
  2. Falling Newspaper Circulation--A Hypothesis:

Falling Newspaper Circulation--A Hypothesis:

The collapse of newspapers seems to be overdetermined at this point: rise of new media, falling quality, ideological bias (in some instances). But I have a hypothessis that may seem somewhat far-fetched to add to the list: a lifestyle change in America, namely, the decline of eating breakfast at home.

This is only a hypothesis, because although I have looked around some, I haven't been able to find really good data on the frequency with which people eat breakfast at home. Casual empiricism, however, suggests that fewer people eat breakfast at home than in the past and are more likely to either it not at all, in the car, or at their desk.

I confess that this hypothesis is generated by my own behavior, but it hardly seems atypical. I do eat breakfast at home and I read the newspaper every morning as part of my morning routine. My parents (now retired) do as well. Since I outgrew reading cereal boxes a few years ago, there are few substitutes for the newspaper when I'm eating my daily breakfast. Certainly not a laptop.

A related factor is the elimination of afternoon newspaper delivery. I'm sure circulation was low for those as well, but this further reduces the available time for newspaper reading.

One factor does seem clear now: most Americans now consider the newspaper more of a luxury than a necessity and so when household budgets are cut when the economy slows, the newspaper be one of the first things to go. Movie listings, game times, etc., all used to be found in the newspaper, but those are things that are found on-line now.

Anyway, I've never seen anyone test the hypothesis of whether this lifestyle change has accelereated the decline of newspapers. Younger cohorts both eat breakfast less frequently and are more likely to have to rush to eat breakfast. But for me at least it is really only my morning routine (which I can afford because I'm a professor so I don't have to race to the office every morning) that keeps me reading newspapers at all.


Sorry, I inadvertently left Comments closed on this if anyone wants to make fun of my hypothesis, or in the unlikely event anyone thinks that it has any value at all. Although Orin's post seems to be the more productive place for comments now.

Related Posts (on one page):

  1. Newspapers and Breakfast:
  2. Falling Newspaper Circulation--A Hypothesis:

Sewing-Machine-Blogging from Prof. Adam Mossoff This Week:

I'm delighted to report that Prof. Adam Mossoff (George Mason University School of Law) will be guest-blogging this week about sewing machines. You might think that an odd topic for this blog, but I much enjoyed reading Prof. Mossoff's article about the history of sewing machines, the patent law fracas that erupted over them in the mid-1800s (A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket), and the possible implications of this history for the current debate about what patent law should do about "patent thickets." I think many of you would likewise be interested both in Prof. Mossoff's piece and in the commentary that he'll provide in his posts this week. Here's a summary of the article:

The invention of the sewing machine in the antebellum era was an achievement on par with the latest high-tech or pharmaceutical discovery today. This paper presents the first comprehensive empirical study by a legal scholar of the invention, patenting and commercialization of the sewing machine in the nineteenth century.

In so doing, it challenges many assumptions by courts and scholars today about the alleged efficiency-choking complexities of the modern patent system, revealing that complementary inventions, extensive patent litigation, so-called “patent trolls,” patent thickets, and privately formed patent pools have long been features of the American patent system reaching back to the antebellum era. This is particularly significant with respect to patent thickets, as there is a vigorous debate on whether patent thickets exist. The sewing machine patent thicket -- called the “Sewing Machine War” -- confirms that patent thickets are not just a theoretical construct. But the Sewing Machine War also reveals how patent-owners have strong incentives to resolve patent thickets.

In this case, it led to the first patent pool in American history -- the Sewing Machine Combination. Even more important, this innovative contractual solution to the first patent thicket occurred at a time when patent-owners received strong legal protection of their property rights (injunctions), including even injunctions issued on behalf of Elias Howe, who was a “non-practicing entity” or “patent troll.” The Sewing Machine Combination ultimately spurred further commercial innovation that was essential to the success of the Industrial Revolution in the United States. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for understanding how the successful American patent system has weathered patent thickets and related problems.

This is one of a series of articles by Prof. Mossoff on the intellectual history of intellectual property, and in particular of patent law. His previous articles have discussed matters such as the historical protection of patents under the Takings Clause and the correlation between the legal realists' theory of property in land and modern patent theory. I much look forward to Prof. Mossoff's posts.


Not So Much "Sunlight before Signing":

As I noted two months back, the Obama Administration has failed to make good on its promise for "Sunlight before Signing" -- a promise that the text of all non-emergency legislation would be made available on the White House website for five days before the President would sign it. So have things improved since then? Nope. As the Cato Institute's Jim Harper notes, the Administration only fulfilled its "Sunlight before Signing" pledge one one of the first eleven bills the President signed into law. That's less than 10 percent. On the bright side, there's plenty of room for improvement.


Paulson, BOA, and Wells Fargo:

The WSJ has a devastating op-ed editorial today on Hank Paulson and what now appears to be the forced acquisition by Bank of America of Merrill Lynch. It is a remarkable tale. Here's the beginning, you have to read the whole thing to believe it:

The cavalier use of brute government force has become routine, but the emerging story of how Hank Paulson and Ben Bernanke forced CEO Ken Lewis to blow up Bank of America is still shocking. It's a case study in the ways that panicky regulators have so often botched the bailout and made the financial crisis worse.

In the name of containing "systemic risk," our regulators spread it. In order to keep Mr. Lewis quiet, they all but ordered him to deceive his own shareholders. And in the name of restoring financial confidence, they have so mistreated Bank of America that bank executives everywhere have concluded that neither Treasury nor the Federal Reserve can be trusted.

Mr. Lewis has told investigators for New York Attorney General Andrew Cuomo that in December Mr. Paulson threatened him not to cancel a deal to buy Merrill Lynch. BofA had discovered billions of dollars in undisclosed Merrill losses, and Mr. Lewis was considering invoking his rights under a material adverse condition clause to kill the merger. But Washington decided that America's financial system couldn't withstand a Merrill failure, and that BofA had to risk its own solvency to save it. So then-Treasury Secretary Paulson, who says he was acting at the direction of Federal Reserve Chairman Bernanke, told Mr. Lewis that the feds would fire him and his board if they didn't complete the deal.

Mr. Paulson told Mr. Lewis that the government would provide cash from the Troubled Asset Relief Program (TARP) to help BofA swallow Merrill. But since the government didn't want to reveal this new federal investment until after the merger closed, Messrs. Paulson and Bernanke rejected Mr. Lewis's request to get their commitment in writing.

"We do not want a disclosable event," Mr. Lewis says Mr. Paulson told him. "We do not want a public disclosure." Imagine what would happen to a CEO who said that.

The most recent issue of Fortune magazine has a similar story of Paulson's abuse of power in effectuating the TARP:
Then came the crisis of last autumn, beginning with the collapse of Lehman Brothers and the government-arranged sales of Washington Mutual and Merrill Lynch. On the last weekend of September the FDIC conducted a forced auction for Wachovia, with Citigroup and Wells Fargo as the two bidders. Citi won that round, agreeing to pay $2 billion for Wachovia's banking franchise, with the government guaranteeing a portion of the losses Citi would assume. Wells thought it could pay more, so after two days, with Kovacevich in Manhattan negotiating with regulators and Stumpf in San Francisco leading a team of 300 numbers crunchers, Wells offered to pay $15.4 billion for all of Wachovia - without any help from Washington. Or so they thought.

Two weeks later, on Oct. 13, Kovacevich was sitting at a long conference table with eight other bank chiefs in Washington, listening to Treasury Secretary Hank Paulson tell them why they should take the government's money. Kovacevich says he protested, telling Paulson that compelling banks to accept TARP funds would lead to unintended consequences. It would erode confidence in the banking sector by making investors question the healthiest banks rather than instilling confidence in the neediest. Other industries undoubtedly would come to expect a bailout themselves. Still, Kovacevich took the money.

His displeasure leaked to the public, but what hasn't been reported is exactly how Paulson flipped the seasoned banker so quickly. In what an observer in the room describes as a "true Godfather moment," Paulson told all the assembled bankers, "Your regulator is sitting right there" - actually the industry's two biggest overlords were in attendance: John Dugan, comptroller of the currency, and FDIC chairwoman Sheila Bair - "and you're going to get a call tomorrow telling you you're undercapitalized and that you won't be able to raise money in the private markets."

For Kovacevich this broadside was the horse's head on his pillow. He and his bank were in an unfamiliar position of vulnerability. Wells had just agreed to buy Wachovia, a bank it had coveted for years, and it needed the government's approval - and, critically, the ability to raise money - to complete the deal. Reflecting on the episode with righteous indignation, Kovacevich points out that each of his warnings to Paulson was later validated. Yet he turns sheepish in explaining his decision. "You want to do what your country and your regulators want," he says quietly in his office, decorated with miniature replicas of Wells Fargo's iconic stagecoaches. "There was no ambiguity," he says, as to what was expected of him.


Doctor Shortage:

N.Y. Times:

Obama administration officials, alarmed at doctor shortages, are looking for ways to increase the supply of physicians to meet the needs of an aging population and millions of uninsured people who would gain coverage under legislation championed by the president.

The officials said they were particularly concerned about shortages of primary care providers who are the main source of health care for most Americans.

One often hears how the U.S. is not graduating enough doctors, and that those who do become physicians feel obliged to go into specialties to pay off their massive student loan debt. I have yet to see in any of these articles one simple reform proposed: abolish the requirement of an undergraduate degree before attending medical school, and turn medical school into a five or six-year post-high school program instead. This would eliminate two or three years of debt, and, perhaps even more important, the opportunity costs of two or three years of college. Right now, an aspiring physician must go to college for four years (and take many classes that have nothing to do with his future career), then medical school for four years, and then typically do a poorly paid internship and then residency for another five years. By the time this aspiring physician goes into practice, he will be at least thirty-one years old, and have eight years of student loan debt.

Surely, one should not be precluded from going to medical school if one has spent four years majoring in political science, or art history, or biology, and taken all the courses currently used to weed out pre-meds. But I don't see any good reason why it should be a requirement, either (and indeed, there are a few six-year medical school programs out there already, and I doubt they produce worse physicians).


Lawbama Land:

There are quite a few legal academics in various positions throughout the Obama Administration. Nan Hunter has a fairly comprehensive list.

What's with Kent State?

Weekend events at Kent State bring to mind Marx's aphorism about events in history happening, twice, the first time as tragedy, the second time as farce.

An end-of-year college block party spiraled out of control as police fired pellets and used pepper spray to break up hundreds of rioting students who sparked a string of street fires at Kent State University.

Video posted on the Internet shows students hurling furniture and street signs into the flames on Saturday night as a SWAT team in riot gear converged on the crowd. Kent police said the party grew violent after one reveler was arrested and students began pelting officers with bottles, bricks and rocks.

It was the first violent clash between Kent State students and police in years. In 1970, four Kent State students were killed by Ohio National Guard troops during a campus protest of the invasion of Cambodia.

United States v. Mitchell and the Duration of a Computer Seizure: The Eleventh Circuit handed down an interesting Fourth Amendment case last week, United States v. Mitchell.

  The facts: The police suspected Mitchell of downloading child pornography, and they went to talk to him at his home. Mitchell candidly admitted to downloading child pornography. Mitchell then brought an officer to his computer, and officer asked if the computer had child pornography stored on it. Mitchell acknowledged that the computer contained child pornography, although he did not consent to allow the officers to search it. Given that the computer contained contraband, the officers decided to open up the computer and take the hard drive away.

  The seized hard drive sat in the government's lab for three weeks until the lead agent applied for and obtained a warrant to search it. (The agent was out of the office on training for two of those weeks, and he didn't think he needed to be in a hurry.) An eventual search of the computer under the warrant yielded contraband images, leading to charges against Mitchell for downloading and possessing images of child pornography. When Mitchell's motion to suppress the images found on the seized hard drive was denied, Mitchell pled guilty to the charges, conditional on his right to appeal the motion to the Eleventh Circuit.

  Held, in a per curiam opinion (Birch, Barkett, Korman by designation): The conviction is vacated because the evidence found on the seized hard drive must be suppressed. The initial seizure was justified, but the police needed to obtain a warrant in a reasonable period of time to justify the continued detention and search. Three weeks was just too long under the circumstances of the case to wait given the sensitive nature of information stored on a computer:
  Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell’s possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure.

  . . . No effort was made to obtain a warrant within a reasonable time because law enforcement officers simply believed that there was no rush. Under these circumstances, the twenty-one-day delay was unreasonable.
  The court emphasized that its holding was context-specific:
While we conclude that the delay in obtaining a warrant here was not justified, we emphasize again that we are applying a rule of reasonableness that is dependent on all of the circumstances. See Martin, 157 F.3d at 54. So for example, if the assistance of another law enforcement officer had been sought, we would have been sympathetic to an argument that some delay in obtaining that assistance was reasonable. The same would be true if some overriding circumstances arose, necessitating the diversion of law enforcement personnel to another case. We also recognize that there may be occasions where the resources of law enforcement are simply overwhelmed by the nature of a particular investigation, so that a delay that might otherwise be unduly long would be regarded as reasonable.
  I suspect some will find the result in this case rather odd. After all, Mitchell admitted that the computer contained contraband images, so it might seem irrelevant exactly when the government obtained a warrant. But the court's analysis seems correct to me. In most cases like this, the officers will obtain the target's express consent to take the hard drive. The officers here tried to get Mitchell's consent, but he initially denied them consent and they apparently didn't ask him again at the end after he admitted that the computer contained the images. Nor did the officers actually see the images themselves before they took the computer away, which would have permitted a plain view seizure (although it might have raised interesting questions about exactly what could be seized under plain view principles).

  As a result, the officers were in Illinois v. MacArthur territory: They could only deny the owner his property temporarily while they obtained a search warrant. Twenty-one days is an exceedingly long period of time to keep property that can only be temporarily seized pending the issuing of a warrant. Under that line of cases I think the court was right to say it was just too long. As best I can tell, the government apparently did not argue inevitable discovery, so that issue wasn't before the Eleventh Circuit.

Sunday, April 26, 2009

Is the TARP Congressional Oversight Panel Off the Rails?

Not everyone is impressed with the growing politicization of the TARP Congressional Oversight Panel, including Megan McArdle and Thomas F. Cooley. To tell the truth though, I'm not sure that anyone knowledgeable is surprised by what has happened.

The panel has been a mess since the very beginning in December 2008 when COP member Congressman Jeb Hensarling received the panel's first report 8 minutes before it was published and refused to sign it.

Polling the Torture Memos:

Rasmussen Reports has some interesting polling results on the treatment of detainees and release of the torture memos. Among their reported findings:

  • 77 percent of voters say they have "followed news reports about the release of government memos about the Bush administration’s interrogation of terrorism suspects" either "Very closely" or "somewhat closely."

  • 42 percent of voters believe America tortured terrorist detainees; 37 percent disagree.

  • 58 percent of voters oppose further investigation of the Bush Administration's treatment of terrorist detainees.

  • 58 percent of voters believe the recent release of memos describing interrogation techniques "endangers the national security of the United States."

I also found this question particularly interesting.

Some people say that there is a natural tension between protecting individual rights and national security. In the United States today, does our legal system worry too much about protecting individual rights, too much about protecting national security, or is the balance about right?

37% Legal system worries too much about protecting individual rights

21% Legal system worries too much about protecting national security

33% Balance is about right

The usual caveats about polling data apply. Your mileage may vary.

UPDATE: This new ABC News poll contains related questions with slightly different results.


Sunday Song Lyric: I have never understood the appeal of "Friday Cat Blogging," but I'm also not much of a cat person. Don't worry. There will be no cat blogging here (at least not from me). But in the past few years a few readers have suggested (albeit in jest) a Sunday Cat Song Lyric. I don't know too many cat songs, but I do know the poems in T.S. Eliot's Old Possum's Book of Practical Cats provided most of the lyrics for Andrew Lloyd Webber's "Cats." So here's a bit from Eliot's "The Ad-dressing of Cats."
So first, your memory I'll jog,
And say: A CAT IS NOT A DOG.

Now Dogs pretend they like to fight;
They often bark, more seldom bite;
But yet a Dog is, on the whole,
What you would call a simple soul.
Of course I'm not including Pekes,
And such fantastic canine freaks.
The usual Dog about the Town
Is much inclined to play the clown,
And far from showing too much pride
Is frequently undignified.
He's very easily taken in -
Just chuck him underneath the chin
Or slap his back or shake his paw,
And he will gambol and guffaw.
He's such an easy-going lout,
He'll answer any hail or shout.
The rest of the poem is here.

Some feline friendly reader may note that the above selection is really about dogs, not cats. True enough, but I said I'm not a cat person.


Is America now an exceptionally bad country?

Roger Cohen offers a mixed but mostly sympathetic review of Godfrey Hodgson’s new book, The Myth of American Exceptionalism.

Here is Cohen in the New York Times:

The book is at its most convincing in tracing the distortions of the American idea in recent decades. The victorious end of the cold war left American power unrivaled, reinforcing the missionary impulse. Beginning with the conservative reaction to the counterculture of the 1960s, the country’s politics veered rightward, feeding a mythology of American power. Working Americans lost out to their corporate masters and the unregulated financial engineers of Wall Street even as capitalism took “its place on the podium as an aspect of American exceptionalism almost equal with democracy.” The culture wars saw the rise of a new Christian right intent on defending its conception of American values not only against metrosexual coastal cities but also against a death-penalty-deriding Canada and Europe. The result, Hodgson argues, is an America unique not for its virtue but for its failings and illusions.

The high number of its prison inmates is exceptional. The quality of its health care is exceptionally bad. The degree of its social inequality is exceptionally acute. Public education has gone into exceptional decline. The Americanization of the Holocaust and uncritical support for Israel have demonstrated an exceptional ability to gloss over uncomfortable truths, including broad American indifference to Hitler’s genocide as it happened.

Some dubious assertions are offered in support of this excoriation, not least that Cuban health care is “as good as, or better than, the average in America.” Everything from the fate of Native Americans to the paucity of United States foreign aid [sic!!] is invoked in the jeremiad’s cause. But I don’t want to cavil; this is a moment of painful American nemesis and it’s captured well by Hodgson. Where I think he’s wrong is in his apparent conviction that a sobered United States can and should become simply a nation among nations. . . .

President Obama, who has said he believes in American exceptionalism, albeit one based more on values than power, has set out to right many of the ills listed by Hodgson.