Saturday, June 6, 2009

Thirty Years in America:

In addition to being the 65th anniversary of D-Day, today is the 30th anniversary of my arrival in the United States from Russia, at the age of five. Nothing else that has ever happened in my life had a greater positive impact on me than my parents' decision to leave the Soviet Union and come to this country. The gains in both standard of living and - even more so - personal freedom have been enormous.

Life in post-Soviet Russia is in many ways better than in the days of communism. But living standards for most people remain far lower than in the West, and the regime of ex-KGB Colonel Vladimir Putin rolled back some of the political freedoms that Russians had begun to enjoy in the 1990s.

The advantages of life in the US over life in Russia are perhaps too obvious to dwell on. Less often appreciated are the ways in which life for immigrants in America is much better than in most other affluent liberal democracies. Although the US is not free of racism and nativist xenophobia, on the whole immigrants are much better accepted by natives than in almost all of the many other countries I have seen. We take it for granted that a person born in Russia or China or India can become as much a "real American" as the descendants of the Founding Fathers. Yet such ready acceptance is far less common elsewhere. In trips abroad, I have seen Russian immigrant communities in several countries, including France, Germany, and Israel, and spoken extensively with relatives and other Russians living there. In each case, they are less assimilated, worse off economically, and have much more tense relations with native-born citizens than the Russians who have come to the US over the last several decades.

In addition to the greater acceptance of immigrants by natives, an important advantage of the US for recent immigrants is that of relatively free labor markets, which make it much easier to get jobs. In Western Europe and Israel, I saw many Russian Jewish immigrants who either depend on welfare or are seriously underemployed. Both are far less common among Russians in this country, except for the elderly. European and Israeli labor regulations make it far harder to fire workers; but that also makes employers more reluctant to take a chance on recent arrivals from abroad. Obviously, jobs are an essential prerequisite for moving up the economic ladder and a crucial pathway to acceptance and assimilation.

Life for immigrants in the United States isn't perfect, and I of course recognize that many have not been as lucky as I was. But we immigrants have reason to be grateful that it is so much better than anything we could have found anywhere else.


Targeted Killing in US Counterterrorism Strategy and Law:

In the last couple of years, much of my research and writing has been devoted to the law and ethics of war, and with particular focus on targeted killing, the concept of who may be targeted on the battlefield for taking "direct part in hostilities," and robotics on the battlefield. These issues come together in the Predator drone campaign in Pakistan - a centerpiece of the counterterrorism and counterinsurgency campaign that Candidate Obama ran on and his administration has embraced as the 'smaller footprint' of warfare.

I am in favor of targeted killing, the drone campaign in Pakistan, and these forms of increasingly targeted warfare. The Obama administration was right to emphasize them in the campaign and right to see them as a means of more discriminating warfare. It is a tragedy when a dozen innocents are killed in a drone missile attack - but much, much more of one when a military undertakes its activities using artillery. I spent a chunk of my NGO career urging the United States to give up landmines as indiscriminate weapons and to focus its military R&D on coming up not with more destructive weapons, but more discriminating ones. Well, to a considerable extent, it is doing so through robotics, and I find it churlish at best for the humanitarian and human rights groups to turn around and denounce these weapons in their turn. There is a principle behind it - but the principle is merely functional pacifism, the denunciation of the US using force that does not quite have the courage to speak its name.

That said, I have grave concerns that the Obama administration does not take sufficient account that even as its appreciation of its strategic, including humanitarian, use grows, the space of its legal rationale shrinks. We are potentially seeing a coming train wreck between the Obama administration and the international "soft-law" community - the NGOs and advocacy organizations, law professors and academics, UN officials, European governments including their universal jurisdiction prosecutors - over these issues. Or, worse, perhaps the Obama administration sees the coming train wreck, and figures that it can kick the can down the road to get past the next eight years and then let a Republican administration take the heat.

I have written a paper on the topic (shameless self-promotion, but this topic is important) which has just been posted as a working paper to SSRN and to the Working Paper series on national security of Brookings; it will appear as a chapter in a book Benjamin Wittes, ed., Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).



Ricci Revisited:

Adam Liptak has an interesting article on Ricci v. DeStefano in the NYT. An excerpt:

Almost everything about the case of Ricci v. DeStefano — from the number and length of the briefs to the size of the appellate record to the exceptionally long oral argument — suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion.

But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court’s decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.

Particularly notable is Liptak's discussion of what went on behind the scenes leading up to the summary order deciding the case.

The appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground. Allies of Judge Sotomayor, who was the junior judge on the panel of the United States Court of Appeals for the Second Circuit, correctly point out that the Second Circuit often decides even significant cases with summary orders that adopt the reasoning of the lower court. They add that the panel’s decision reflected a respect for precedent, though it cited none. Judge Sotomayor certainly made no suggestion at the argument that she was constrained by precedent to rule for one party or the other. . . .

In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

I find this last bit particularly interesting. The unpublished order resolved the case without creating binding precedent for the Circuit. Perhaps this was an acceptable compromise because the panel eventually concluded that a written opinion based upon the particular facts in this case could create a problematic precedent; hard facts make bad law, etc. Yet this was not the end of the matter. Once it was clear other judges on the Circuit disagreed with the panel's disposition, a per curiam opinion was published, adopting the district court's reasoning as binding circuit precedent. Therefore, the considerations that likely led the panel to issue the original unpublished order were no longer applicable. Indeed, if Liptak's account is accurate, it makes the Second Circuit panel's conduct seem worse than I had presumed. The very fact that the panel had such difficulty uniting around a single rationale for the case in the first place is, in itself, evidence that summary affirmance and adoption of the district court's rationale as Circuit precedent was inappropriate (a point Judge Cabranes stressed in his dissent from denial of rehearing en banc). No doubt this is not the last we have heard about this case and how it was handled.

UPDATE: In an essay about another case in which Judge Sotomayor joined a panel issuing an unpublished opinion, Miller v. New York, Emily Bazelon suggests why Ricci was initially resolved with an unpublished order.

The 2nd Circuit may have more than its share of unpublished opinions in hard cases for the sake of preserving unanimity. This might help explain why Sotomayor and the other two judges who heard the New Haven firefighters' claim resorted to a short opinion stripped of analysis. Perhaps in that case, too, there was a fragile consensus that Sotomayor or another judge was trying to maintain or a difference of opinion about the reasoning behind the holding in New Haven's favor.
Yet as I noted above, insofar as the Ricci panel chose to issue an unpublished order instead of publishing an opinion with precedential effect, this cannot explain (let alone justify) the panel’s subsequent decision to issue a brief, per curiam opinion adopting the district court’s decision as binding law for the circuit.


Privatizing Trademarks:

My soon-to-be-new colleague Irina Manta has recently posted her article "Privatizing Trademarks" (forthcoming in the Arizona Law Review on SSRN. While I don't know much of anything about trademark law, I generally like privatization and found the article interesting. The abstract is below.

While trademarks are designed to promote a competitive and productive marketplace, the current system of trademark registration is run by the Patent & Trademark Office as a monopoly of questionable productivity. The average time that it takes for the Patent & Trademark Office to process a trademark application is over a year, and as a result, trademark applicants risk investing substantial sums of money into a mark to discover much later that the Patent & Trademark Office will not register it. This Article considers a possible solution - a system of privatized trademark registration. The system would contain several features: 1) Multiple "entities" serving as registrars: Various private entities would compete with each other and register trademarks while sharing one database for pending and registered trademarks. Market mechanisms would thus encourage speedier and more effective registrations. 2) Optional expedited process: Different entities could employ price discrimination calibrated to the speed with which a trademark applicant wants to use his mark. 3) Quality control mechanisms: For example, to ensure the quality of the registration process, a rating system would permit clients to provide feedback after registration and years later. An entity providing ineffective services or issuing trademarks that later faced serious litigation would earn poor ratings while a reliable entity would fare well. To explore the viability of trademark privatization, the Article relies on both the theoretical privatization literature and practical examples in which government exclusivity has been removed from intellectual property (and other) decision-making. By challenging assumptions about the status quo surrounding the monopoly of the Patent & Trademark Office, the Article seeks to open a more general discussion about improvements to the existing system of trademark registration.


Requirement That People Entering Courthouse Remove Masks or Veils at Security Checkpoint:

"1. A deputy sheriff may require individuals entering the courthouse to remove masks, veils, or other face coverings at the security checkpoint, without regard to whether the individual claims a religious basis for remaining masked or veiled, if the sheriff’s office has a neutral and generally applicable policy of requiring removal of face coverings for security purposes.

"2. To minimize potential conflicts between the requirements of courthouse security and the religious practices of individuals entering the courthouse, it would be useful [but not legally mandated] if security details were comprised of both male and female officers and if a private space were available at the entrance of the courthouse for those individuals whose religion discourages removal of a head covering in public."

So opines the Maryland Attorney General. Maryland has no mandated religious exemption regime, so this is clearly right.

About half the states do have such a regime, either under the state constitution's religious freedom cause (as interpreted by state courts) or under a state Religious Freedom Restoration Act; and so does the federal government, as applied to federal action. The Maryland AG says, though, that even under such regimes no exemption from a policy of "temporary removal ... of a head covering," because the policy likely "would survive strict scrutiny [mandated under such exemption regimes] as a narrowly tailored effort to further a compelling interest in courthouse security."

The AG doesn't discuss whether considering sex in assigning guards to the checkpoint (or perhaps even in hiring guards, if not enough female guards are available), or in assigning guard duties at the checkpoint, would violate Title VII of the Civil Rights Act of 1964 or any similar Maryland law. As I discussed in this article, the "bona fide occupational qualification" exception to bans on sex discrimination in employment would generally justify some sex classifications aimed at protecting privacy. I know of no caselaw on whether this would cover accommodating privacy concerns that go beyond normal social privacy norms -- please let me know if you can point me to some such caselaw -- though I'm inclined to conjecture that it probably would.


Sotomayor's Multiple "Wise Woman" Speeches:

This week it was reported that Judge Sotomayor has made several speeches in which she suggested that a "wise Latina woman," or simply a "wise woman," would make different or better decisions as a judge than a "wise man." Does this matter? According to some, this is further evidence that her statement in a 2001 speech that she hoped a "wise Latina" judge would make "better" decisions than a white male judge was not an isolated misstatement or "unscripted" moment, as claimed by the White House.

Sotomayor's supporters claim, however, that these prior speeches show that her 2001 speech was no big deal, as Republicans did not make these remarks an issue when she was nominated to the U.S. Court of Appeals for the Second Circuit. I am not sure I follow the logic of this argument, however, as it seems quite apparent that most Senators apply greater scrutiny to Supreme Court nominations than to those for lower courts. Most devote more time analyzing Supreme Court picks, and apply a higher standard for confirmation. So, for instance, there were Democrats who voted to confirm John Roberts to the D.C. Circuit who opposed his elevation to the Supreme Court, including Joe Biden and Dianne Feinstein. I also suspect many Democrats (and law professors, for that matter) who did not oppose confirming Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit would have opposed his elevation to the Supreme Court. In the latter case, writings and speeches that were not an issue when McConnell was nominated to be an appellate judge would have been an issue in the context of a Supreme Court nomination. This does not mean that these speeches are sufficient grounds for opposing Sotomayor's confirmation, just that I don't see why Senators who failed to raise them before should be estopped from raising it now.

UPDATE: Commenter Barbra writes: "Your puzzlemant [sic] over the logic of the argument is a puzzle. If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today." If I thought Judge Sotomayor's comments indicated she was a "sexist-racist," then that would have been as true in 1998 as it is today. However, I do not believe Judge Sotomayor's speech indicates that she is either a sexist or a racist (and I find the repeated accusation, made in comment threads and elsewhere, quite tiresome). As I noted in my first post about the speech, my concern is what her remarks indicate about her conception of the role of the judge, and this is precisely the sort of concern that could well be greater for a potential Supreme Court justice than an appellate judge.


Sotomayor, Santa and Souter:

A story in yesterday's WSJ headlined "Nominee's Criminal Rulings Tilt to Right of Souter" suggested that Judge Sonia Sotomayor could be more "conservative" than Justice Souter on criminal justice issues. While this is certainly possible, and I would not be surprised to see some differences between Sotomayor and Souter on criminal law issues, I am not sure that the primary case relied upon in the WSJ story supports its conclusion.

According to the story,

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice.

The Supreme Court's five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.

Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records. . . .

In the Fourth Amendment case in 1999, Judge Sotomayor ruled against Anthony Santa, who was sentenced to 30 months after officers in Spring Valley, N.Y., arrested him and found 2.95 grams of crack cocaine.

Mr. Santa's lawyer said the arrest and search were improper, because officers were acting on a warrant from a neighboring town that had been canceled two years earlier. The Supreme Court had earlier ruled that such mistakes didn't invalidate evidence if court officials were responsible. The issue of responsibility was in dispute in this case, but Judge Sotomayor's ruling assumed the police had acted appropriately and upheld the sentence.

The White House talking points on Justice Sotomayor also point to this decision as evidence of her "sensible practicality" on criminal justice issues.

Does Judge Sotomayor's decision in United States v. Santa support the claim that she would be to Justice Souter's right on criminal law issues? I don't think so. As I read it, Judge Sotomayor's Santa opinion was a straighforward application Arizona v. Evans, a 1995 decision in which the Supreme Court held, 7-2, that the exclusionary rule did not apply to evidence obtained in violation of the Fourth Amendment where the police relied, in good faith, on erroneous information provided by court employees. Justice Souter joined the majority opinion in Evans, and also joined concurring opinions by Justices O'Connor and Breyer, the former of which was explicitly cited by Judge Sotomayor in Santa.

The suggestion that Santa indicates Judge Sotomayor would be to Justice Souter's right comes from Justice Souter's dissent in Herring v. United States, a case decided this past January. [For more on Herring, see Orin's posts here.] In Herring, Justice Souter dissented from the Court's holding that the Evans exception applies when police rely upon erroneous information in a police database. While there are similarities between Herring and Santa, and Justice Souter joined Justice Ginsburg's Herring dissent that echoes her reasons for dissenting in Evans, Justice Souter also joined Justice Breyer's separate dissenting opinion distinguishing Herring from Evans on the ground there are reasons to distinguish police reliance upon police errors and judicial errors in this context. Judge Sotomayor also relied upon this distinction in her Santa opinion, in which she wrote (citing Evans):

where, as here, "court employees were responsible for the erroneous computer record," and "[t]here is no indication [in the record] that the arresting officer[s] w[ere] not acting objectively reasonably when [they] relied upon the police computer record," Evans instructs that "the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction."
Does this mean that replacing Justice Souter with Judge Sotomayor will have no effect on criminal law? Not necessarily. One area where the switch could have a significant effect is criminal sentencing. Justice Souter joined the Court's five-justice majorities in the Apprendi-Booker line of cases holding that judges may not increase criminal sentences based upon facts not found by the jury "beyond a reasonable doubt." These were all 5-4 decisions, but did not split the Court along traditional ideological lines. Rather, the Court split between formalists and pragmatists. In these cases Justice Souter joined Justices Stevens, Scalia, Thomas and Ginsburg (save for part of Booker in which Ginsburg flipped), so if, as a Justice, Sotomayor is more "pragmatic" than Souter on sentincing issues (perhaps due to her time as a trial court judge), it might have a significant effect on this area of the law, but I don't think we should chracterize this as a shift in a more "conservative" or "liberal" direction.

Finally, in looking at how Judge Sotomayor might address criminal justice issues once confirmed to the Court, I also found this tidbit from the WSJ interesting.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."


Friday, June 5, 2009

Presidential Signing Statements -- The More Things Change:

I'm sure it's only a matter of time until the ABA denounces as "contrary to the rule of law and our constitutional system of separation of powers" President Obama's use of signing statements to voice constitutional concerns about legislation he signs into law. See ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, Report at 5 (July 24, 2006) ("ABA Task Force Report"). The President quietly issued another such signing statement on Tuesday, the fourth constitutional signing statement of his young presidency.

The signing statement notes that six Members of Congress to be appointed to the newly created Ronald Reagan Centennial Commission may serve in an advisory or ceremonial capacity only and may not administer the act, consistent with separation of powers doctrine, the Appointments Clause, and the Ineligibility Clause. It read:

I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).

President Bush issued a remarkably similar statement in 2001:

Consistent with the requirements of the Appointments Clause of the Constitution, I welcome the participation, in an advisory capacity on the commission, of representatives of the Judiciary; the Brown Foundation for Education Equity, Excellence, and Research; the NAACP Legal Defense and Education Fund; and the Brown v. Board of Education National Historic Site in the activities of the commission. While the Constitution does not permit them to participate in the performance of executive functions, their advice will be crucial to the effective functioning of the commission. As I exercise my constitutional power of appointment to name 11 members of the commission, under the Appointments Clause and the enabling legislation, I welcome, as a matter of comity, the suggestions of the congressional leadership for those positions.

Signing Statement for H.R. 2133, creating the "Brown v. Board of Education 50th Anniversary Commission" (P.L. 107-41) (Sept. 18, 2001). As a Deputy in the Office of Legal Counsel, I testified on Presidential Signing Statements before the House Judiciary Committee, and so I am fairly familiar with their past use. As President Obama's signing statement itself suggests, similar concerns have routinely been expressed by Presidents of both parties for the past quarter century.

President Obama's most recent signing statement is novel not for its substance so much as for the layers of political cover the Administration has provided itself, by (1) explicitly mentioning a forebear who expressed a similar concern; and (2) explicitly noting that the Administration "has so advised the Congress" before enactment. Noting that the Administration has advised Congress of its objections addresses one of the recommendations of the ABA Signing Statement Task Force, that the President "communicate such concerns to Congress prior to passage." ABA Task Force Report at 5. Confirming that such notice was given in the signing statement itself seems prudent as a matter of congressional relations, but it is more a matter of style than substance. Although there have certainly been exceptions, administrations of both parties (including the Bush Administration) have routinely advised Congress of their constitutional objections through informal contacts and formal bill comment letters. The Obama Administration has now taken an additional step to "paper the record" by noting that fact at the time of the signing statement.

For those of you keeping score at home, based on the listing of signing statements on (which includes both constitutional signing statements and uncontroversial rhetorical or laudatory signing statements), President Obama has issued more constitutional signing statements than President Bush had at this point in his presidency (by my count, four versus one).

Related Posts (on one page):

  1. A Belated Presidential Signing Statement:
  2. Presidential Signing Statements -- Comment Thread:
  3. Presidential Signing Statements -- The More Things Change:

Blogging Break: Today's arrival of John Elwood at the blog happens to coincide with my departure: I have accepted a position as Special Counsel for Supreme Court Nominations for Senator John Cornyn for the duration of the Sotomayor nomination. The job starts on Monday, so I will be taking a break from blogging during the next few months. I might have a post or two up later today or over the weekend about unrelated matters, but I'll be offblog after that.

The Five Films and the Five Non-American Works of Fiction

that best explain the 20th century. Acceding to popular demand for a film list, and I'm also interested in non-US fiction. Some commenters pointed to several - The Man Without Qualities, The Tin Drum, etc. - but I would be interested in other suggestions from around the world. Apologies for tying up VC with something unserious, but I actually need to compose a list for some high schoolers.


John Elwood Joining the Conspiracy:

I'm delighted to report that John Elwood will be joining us as a coblogger. John is a D.C. appellate lawyer, a former clerk for Justice Kennedy, and (for the last seven years) an Assistant to the Solicitor General and the senior Deputy at the Justice Department's Office of Legal Counsel. The cognoscenti also know him the one-time (until June 2001) author of the hilarious but also substantively informative Baker & Botts Supreme Court Reports. I've known John for years, and always much admired his work.


Is Judge Sotomayor's Cheerleading for Obama Proper?

Ed Whelan has this very interesting post on whether Judge Sotomayor's public support for Obama's election as President was unduly partisan. Indeed, Whelan suggests the Sotomayor may have violated the canons of judicial ethics requiring judges to maintain the appearance of impartiality.

I have to say that, when I was a federal judge, I certainly would have been reluctant to wade into the merits of what happened during a Presidential election to the extent that Judge Sotomayor did.

Update: Sorry for the broken link to Whelan's post, which I just fixed.


What Five Works of Fiction Best Explain the 20th Century?

Name in the comments the five works of fiction that you believe best explain - not define or symbolize or exemplify, precisely - but in some way explain the past century to (in Brecht's phrase) 'those who come after. I have been asked this question by some high school students and before responding I thought I would consult the Wider Conspiracy. Particularly if the book is not something super well-known to an American audience, give a bit of description about when it was written, by whom, what it's about, and why it's on your list.

To give the full Brecht quote (from memory so might be slightly wrong and anyway a free translation), from the Three Elegies, written in Santa Monica and set to music by Hans Eisler:

"To those who come after, When man is no longer wolf to man, Remember us with forbearance."

Forbearance is a deeply under-appreciated moral virtue.


Supreme Court Justices and "Policy Implications":

Ed Whelan (National Review's Bench Memos) writes:

In a May 2006 speech, Judge Sotomayor tells “a joke that [she thinks] aptly describes the difference between supreme court, circuit court, and district court judging”:

It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn’t shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck’s flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

So Sotomayor thinks an unobjectionable and apt description of the role of Supreme Court justices in making decisions involves “ponder[ing] about ... policy implications.”

(The excerpt above is from the prepared text on pages 10-12 of the speech (emphasis added). Sotomayor handwrote some trivial changes.)

The trouble with this criticism, it seems to me — even if you take the joke seriously on this point — is that of course Supreme Court Justices routinely, and entirely properly, consider "policy implications" in the sense of consequences. Let me just offer a few examples:

1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability.

This is so even when there are statutes, but the statutes are either deliberately vague or specifically delegate authority to federal courts. Antitrust law, where the Court has for over a century interpreted the categorical ban on restraints of trade as an authorization to develop a law of which restraints are permissible and which aren't, is another noted example. The fields of evidentiary privileges and copyright fair use, where the Congress expressly left the federal courts the task of developing the law further, offer more examples. In all these areas, the job of the federal courts, and in particular the Supreme Court, is to develop legal rules that they see as sensible "in the light of reason and experience," and looking at consequences ("the policy implications") is an important part of that.

Recall that most of American law (including property, tort, contract, evidence, and criminal law) was developed by the common-law courts. It has been in considerable measure codified by legislatures, but common-law courts continue to develop it. The scope of common law and common-law-like development by federal courts is narrower, but there are still considerable chunks in which it persists.

2. But I take it that Whelan is particularly considered about the interpretation of statutes — and let's even focus on those statutes that don't contain broadly recognized delegation of broad authority to judges — and of constitutional provisions (though Judge Sotomayor didn't focus on those). Still, it's pretty uncontroversial that even there judges should look at practical consequences. To my knowledge, all the Justices, including the strongest textualists and originalists on the Court (such as Justices Scalia and Thomas), routinely consider practical implications in interpreting statutes and constitutional provisions.

The cases that come before the Supreme Court are generally not ones in which the text provides one absolutely clear result. There are plenty of such cases in our legal system, but they tend to be resolved early, precisely because the result is clear. Rather, you often have several plausible readings. Figuring out the best reading often leads judges to ask whether one or another reading would have results that are ridiculous, or inconsistent with what was understood as the purpose of the provision, or unduly administratively burdensome.

Now one can certainly argue that courts should look first and foremost at the text and original meaning; but as I mentioned, I think nearly all Justices and judges would agree that the text and original meaning are often not dispositive. One can also ask that, within those boundaries, courts be attentive to precedent. But precedent itself has often been developed based on considerations of consequences (especially when the text and original meaning were ambiguous). And the decision whether to reverse precedent itself often involves consequentialist attention to "policy implications"; see for instance two recent reversals of precedent, Montejo v. Louisiana and Arizona v. Gant, in both of which Justices Scalia and Thomas were in the majority (and in one of which Chief Justice Roberts and Justice Alito were in the majority).

3. Finally, recall that many well-established constitutional tests, including ones that aren't controversial among conservatives, liberals, or pretty much anyone else, specifically call for an evaluation of consequences. Even Justices Scalia and Thomas, who would read the Equal Protection Clause as being a nearly categorical ban on race classifications by the government, would recognize an exception for "those measures the State must take to provide a bulwark against anarchy, or to prevent violence" (such as prison riots or "imminent danger to life and limb). Likewise, speech restrictions may sometimes be constitutional if they are necessary to serve a sufficiently important government interest — and you can't decide that without looking to the consequences of the decision.

* * *

I mention all this because talk about how judges shouldn't "make policy" has been commonplace now, especially on the Right. (Consider also the fuss about Judge Sotomayor's "the court of appeals is where policy is made" line.) And I think criticisms of excessive judicial policymaking — and in particular, in the sense Judge Sotomayor uses the phrase in the joke quoted above, decisionmaking based on what seems to the judge to be likelier to produce good results — are often correct. Sometimes the text or original meaning of a binding legal command is clear, and courts should follow that.

But it's a mistake, I think, to turn that important insight into a categorical assertion that judges shouldn't "make policy," or should just "follow the law" instead of "making the law." First, judicial development of legal rules, with an eye towards their consequences, is a longstanding feature of American law, recognized and accepted from the Framers onwards. (Yes, I know that there was often talk about how the courts "discovered the law" rather than "made the law," but the reality was that judges did indeed make important decisions based partly on the perceived consequences of those decisions, rather than just following unambiguous custom or the commands of abstract reason.) In the federal courts, the proper scope of the courts' pure common-law-making powers is less, but it's also supplemented by deliberate delegations by Congressional statutes.

Second, some judicial attention to consequences is inevitable given the ambiguity of the text and original meaning of most statutes and constitutional provisions. And third, the constitutional rules that courts have developed — with the support of even those Justices who care most about text and original meaning — expressly call for some degree of consequentialist reasoning in their application.

Any particular decision, or set of decisions, by a court or a judge can of course be faulted for unduly departing from the commands that one thinks should be legally binding. But a thoroughgoing condemnation of judicial attention to "policy implications" in the sense of a decision's practical consequences strikes me as unsupportable, especially in the American legal system as it has been understood for centuries and as it continues to be understood today even by the judges that the Right most applauds.

UPDATE: Ed Whelan e-mailed me to note that he has revised his post in light of this one, to say (italics indicates new text):

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about ... policy implications.”

I much appreciate the revision, which does make Whelan's point narrower. But I think that on balance the criticism still isn't quite apt.

A. Recall that the Supreme Court agrees to hear only about 1-2% of the cases that it's asked to hear. Generally speaking, these are cases on which lower courts have split, or on which the courts have disagreed with Congress and the President on the meaning of the Constitution. They are therefore precisely the sorts of cases in which statutory or constitutional text is ambiguous. So the cases the Court hears tend to be precisely the ones that are most likely (not certain, but most likely) to involve a substantial legitimate zone for consequential judgment, even to those judges who think text and original meaning should trump. [UPDATE: D'oh! At first wrote "tend not to be ..."; how did that happen? Sorry.]

B. The Supreme Court is much less bound by its own precedents than are lower courts. In practice, the Supreme Court still adheres to its own precedents in nearly all cases, but it is free to reverse them — and, as I mentioned, concerns about consequences play a major role in deciding whether to reverse a precedent.

C. The Supreme Court it's not all bound by circuit precedent, where district and circuit judges are (except when the circuit is hearing a case en banc). So while district and circuit court arguments are often disposed of by simple citation to a binding circuit precedent, arguments in the Supreme Court often can't be disposed of so easily (and if they could be, the Court wouldn't have agreed the case, see item A).

So for all these reasons, it seems to me that Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions. What is indeed legitimately and particularly distinctive about the Supreme Court is that the Justices often can't say "we follow the clear text or original meaning" (since if it was so clear, the case would generally not even be at the Court), sometimes shouldn't say "we follow our own precedent" (since often there's a solid argument for reversing the precedent), and nearly never say "we follow circuit precedent." Instead, they must look to other sources — and consequences, for the reasons I described above, are one such important source.


Literal Video--Total Eclipse of the Heart:



Lies, Damn Lies, and Grape Nuts:

Ann Althouse, guest-blogging at InstaPundit posts about a failed consumer fraud lawsuit about "crunchberries": Turns out there are no actual berries called "crunchberries" in Cap'n Crunch, but that's not a problem, the judge ruled. (Who knew?)

But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a great excuse to mention Nashville Syrup Co. v. Coca Cola Co., 215 F. 527 (6th Cir. 1914):

Since [1892], [the Coca Cola Co.] has continuously manufactured and sold a syrup under the name, ‘Coca Cola‘; and, used as a basis for carbonated drinks, the syrup, under this name, has had a large sale in all parts of the country.... Plaintiff enjoyed the exclusive use of the name from 1892 until 1910. In that year, J. D. Fletcher, now the active manager of the Nashville Syrup Company (herein called defendant), became interested with others in the manufacture of a somewhat similar syrup being sold under the name ‘Murfe's Cola.‘ Later in that year they changed the name of their product to ‘Murfe's Coca Kola,‘ and shortly afterwards, Mr. Fletcher became sole owner of the business, and the product was named ‘Fletcher's Coca Cola,‘ and has been sold by him and his successor, the Nashville Syrup Company, under that name. [Coca Cola Co. sued.]

There remains the question whether the mark is deceptive.... [W]e assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands, and because such words could not be within the fair contemplation of the act, when it refers to ‘any mark * * * which was in actual and exclusive use as a trade-mark,‘ etc....

The argument is that the use of the name, ‘Coca Cola,‘ implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain....

Plaintiff's counsel say, and so far as we see accurately say:

‘The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter; cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.‘ ...

We conclude that the name Coca Cola as applied to plaintiff's product, while undoubtedly suggestive, is not so substantially and really deceptive as to invalidate the registered mark.


Bloggers Agree: GM Bankruptcy Good; Sotom. Helps Ds, Hurts Rs:

This week's National Journal Poll of political bloggers asked "Do you agree with President Obama's decision to take General Motors to bankruptcy court?" One hundred percent of the Left, and 54% of the Right said "yes."

I was in the majority, albeit with a qualification: "Even better would have been bankruptcy according to established legal rules, rather than the Peron-style expropriation of money from the senior bondholders for the benefit of the UAW."

Question 2 was "Regarding the Supreme Court nomination of Sonia Sotomayor, what will be the political impact on your party?" On the Left, 94% thought it would help their party, and on the Right, 67% thought it would hurt their party.

My answer was idiosyncratic. Although it's listed under "minor harm," I had voted for "minor help." I explained: "As a Democrat, I think it will help the party by mollifying some of the Hispanics who will be upset by Obama's inability to pass an amnesty program for illegal aliens. The nomination may also benefit Republicans, if Republican senators raise serious objections about some of Sotomayor's unpopular and legally weak decisions, such as Ricci, Maloney and Village of Port Chester."


"How to Read A Legal Opinion: A Guide for New Law Students": Readers who are starting law school this fall -- or nonlawyers just interested in the legal system -- might be interested in reading my short guide to reading legal opinions: How to Read a Legal Opinion: A Guide for New Law Students. I've posted about this in the past, but I figure a reminder is helpful for newer readers.

State Supremes Rule Against Gov. Sanford:

The South Carolina Supreme Court ruled unanimously that Governor Marc Sanford must request stimulus money for education as directed by the state legislature. Gov. Sanford says he will not appeal.


Tiananmen Twenty Years On:

The day it happened in 1989, I was at a human rights retreat organized by Henry Steiner and Philip Alston, a remarkable private meeting of human rights organizations, from north and south, on the island of Crete. Remarkable in that it was one of the first times that anyone had tried to sit down a bunch of human rights NGOs and discuss a set of important and simultaneously practical and abstract themes. Not everyone attended - Human Rights Watch rather snootily said that it had better things to do than attend academic conferences. The horror! But it was the loser; the exchanges, particularly between north and south, were frank and pointed and one of the first such occasions within the human rights NGO movement.

I was there as the young conference administrator person, dealing with things like rooms and planes and meals and all that, seconded, I am pleased to say, as a pro bono gift of Sullivan & Cromwell. Tiananmen took place while all of us were there; it was discussed at length, but the conference declined to make a joint statement, if I recall correctly. I think that was the right decision - no one at the meeting was authorized to speak on behalf of their organizations, to start with.

Somewhat more disturbing was that not everyone at the conference appeared to think that the Chinese protestors had a defensible cause, even if they were not eager to see Tank Man flattened. The fault lines of the human rights movement and its internal contradictions run deep, from its ideological development in the 1980s down to today. But I recall watching the protests on the small TV that was in the monastery on a remote stretch of beach on the island, hoping that it would turn out like the Soviet Union, but not very sure. But I did not want to let today go by without marking it.


Thursday, June 4, 2009

How Offshore Corporate Income Tax Savings Works:

A quick practical example responding unfortunately belatedly to a student who, congrats, graduated a week or so ago and who asked, what was what with proposals from the Obama administration to tax US corporate income parked offshore? I ran across a short Bloomberg article giving a practical example of what's at issue with respect to Microsoft. The issue is this:

Obama on May 4 proposed outlawing or restricting about $190 billion in tax breaks for offshore companies over the next decade. Such business groups as the National Foreign Trade Council, the U.S. Chamber of Commerce and the Business Roundtable have denounced the proposed overhaul.

U.S. tax rules let companies defer paying corporate rates as high as 35 percent on most types of foreign profits as long as that money remains invested overseas. Obama says he wants to end such incentives to keep foreign profits tax-deferred so that companies would invest them in the U.S.

Here's how the current tax arrangements function for Microsoft:

Barry Bosworth, an economist in Washington at the Brookings Institution research center, said many software companies such as Microsoft have exploited tax and trade rules in the U.S. and other countries to achieve a low overall tax rate.

Typically, he said, a company like Microsoft develops a product like Windows in the United States and deducts those costs against U.S. income. It then transfers the technology to a subsidiary in Ireland, where corporate tax rates are lower, without charging licensing fees. The company then assigns its foreign sales to the Irish subsidiary so it doesn’t have to claim the income in the United States.

“What Microsoft wants to do is deduct the cost at a high tax rate and report the profits at a low tax rate,” Bosworth said. “Relative to where they are now, the administration’s proposals are less favorable, so there will be some rebalancing on their part.”

There is nothing illegal or unethical about this, of course; the tax rules were developed understanding these effects. It's an asymmetrical relationship; deduct at the high country rate and pay tax abroad at the low country rate. But given that the rules were set up with the effect of giving companies like Microsoft an effective lower tax rate - 26%, according to the article - a change in that rate will cause what Bosworth calls, a trifle blandly, "rebalancing," which is to say adjusting for the tax hit by moving jobs offshore. (It's also not very clear to me how the proposed change leads to increased investment in the US, unless one thinks of the tax paid in the US as a form of investment in the US government's investment plans.) However, good idea or not, the article gives a useful, quick, and real life example of how the current system works drawing on Microsoft.


Court Upholds "Unitary Waters" Regulation:

Earlier today the U.S. Court of Appeals for the Eleventh Circuit issued a potentially significant environmental decision in Friends of the Everglades v. South Florida Water Management District. The court upheld the Bush Administration's controversial regulation adopting a "unitary waters" theory of the waters of the United States for purposes of Clean Water Act permitting. Under the regulations, upheld on Chevron step two grounds, the transfer of water from one water body to another does not cause the "discharge" of a pollutant under the Act. As far as I am aware, the Eleventh Circuit is the first circuit court to consider whether this regulation adopted a reasonable interpretation of the Act.

Excerpts from the opinion are below.


Surplus of Males and Runaway (with the Bride-Price) Brides:

The WSJ has a story today that we are increasingly likely to hear in some version. The one-child policy and preference for boys has led to a well-documented shortages of marriageable women in China, particularly in some parts. In this story, brides marry rural men, extracting a bride-price, and then running away with the money. There are other things that happen too - abductions of women in rural villages, the renting out of a farmer's wife to other farmers who cannot find wives. It is a social issue that is only now beginning to hit adult Chinese society in full force. There is an extremely important and good book on the implications of this surplus of males in China, Bare Branches: The Security Implications of Asia's Surplus Male Population, by Valerie Hudson and Andre den Boer (2004). (Demographer Nicholas Eberstadt has written on the economic implications of this for regions of China and India, as well as a superb series - published in Spanish, as it happens - on European health and retirement, in the Madrid Revista de Libros.) As the WSJ article notes:

Thanks to its 30-year-old population-planning policy and customary preference for boys, China has one of the largest male-to-female ratios in the world. Using data from the 2005 China census — the most recent — a study published in last month's British Journal of Medicine estimates there was a surplus of 32 million males under the age of 20 at the time the census was taken. That's roughly the size of Canada's population.

Now some of these men have reached marriageable age, resulting in intense competition for spouses, especially in rural areas. It also appears to have caused a sharp spike in bride prices and betrothal gifts. The higher prices are even found in big cities such as Tianjin.

A study by Columbia University economist Shang-Jin Wei found that some areas in China with a high proportion of males have an above-average savings rate, even after accounting for factors such as education levels, income and life-expectancy rates. Areas with more men than women, the study notes, also have low spending rates — suggesting that many rural Chinese may be saving up for bride prices.

A moderate libertarian like me has read Heinlein, of course, and even read long sections of The Moon Is a Harsh Mistress aloud to his adoring, or anyway somnolent, child until she took over and finished it herself. So my operating assumption has generally been that a shortage of females in a suitable place - a penal colony on the moon, for example - would mean that women would be able to command a suitably high marriage price, and contract for favorable plural marriage conditions. My (lapsed) Mormon background rendered me quite unoffended by the concept of plural marriage as such.

Exposure to the wider world, however, has left me persuaded that abstract libertarianism must sometimes give way to the realities of cultures and actual conditions. My view today is that - drawing on conversations with Eberstadt in which he noted that he, too, had read Heinlein - it was far more historically common, and almost certainly the more common direction of things today, that in a world with scarcity of women - especially in a world of scarcity of females and yet a cultural preference for male births - the result would be increased treatment of women as property. More valuable property, yes, but increasingly as property precisely as the perception of its value increased.

The authors of Bare Branches have noted that a surplus of males unable to find mates is the social equivalent of plural marriage in which a single male has exclusive reproductive access to multiple wives. The effect is to create, as in China, India, and other places with similar cultural patterns combined with modern technology, the imbalance in the sexes. Again, my moderate libertarianism gives way to social realities - no doubt informed by my Mormon upbringing, which left me on the one hand the least offended person in the world by the idea of polygamy, but on the other hand a very detailed understanding of what it means in practice, for women but also for surplus men and boys. Indeed, there is a very good and persuasive paper by Thom Brooks arguing - contra Martha Nussbaum and others - that a society of multiple wives and a single husband is inherently and necessarily an inegalitarian one. Here is the SSRN abstract, courtesy Legal Theory Blog:

Thom Brooks (Newcastle University - Newcastle Law School) has posted The Problem with Polygamy on SSRN.  Here is the abstract:

• Polygamy is a hotly contested practice and open to widespread misunderstandings. This practice is defined as a relationship between either one husband and multiple wives or one wife and multiple husbands. Today, 'polygamy' almost exclusively takes the form of one husband with multiple wives. In this article, my focus will centre on limited defences of polygamy offered recently by Chesire Calhoun and Martha Nussbaum. I will argue that these defences are unconvincing. The problem with polygamy is primarily that it is a structurally inegalitarian practice in both theory and fact. Polygamy should be opposed for this reason.

The inequality that is baked into a society in which one husband has multiple exclusive wives is perhaps not primarily or necessarily about the wives, if one makes (extremely, fantastically heroic assumptions, in actual social fact) about their freedom to choose, and if it included the right to divorce not only the husband, but other wives (however that might work in some idealized world). The intrinsic inequality is about the mateless men, deprived of the opportunity to even have a chance to marry and have families and children. I don't recall offhand the numbers, but it only takes a quite small percentage of men with three or four wives to create something approaching the imbalances of regions of China or India. It is in a certain sense an inequality far worse than mere economic inequality - although almost always deeply embedded and intertwined with it.

The point is not that the mateless men have a right to have a wife, but instead they ought, in an egalitarian society, to have a right to be able to compete for one in the marriage market. Equality of opportunity, not necessarily equality of result. And of course it goes the other way around; a society in which large numbers of women were deprived of the ability even to seek a mate would be equally unattractive. The reality, however, as Brooks points out, is that although one can talk about multiple husband societies, in actual social practice and history it is extraordinarily rare, to the point that it is more of a philosophical distraction than useful discussion.

But even framing the argument in this abstract way in a certain sense misses the social reality - it is not really the right way to debate the question, I think. The granular look at how these social arrangements work in fact, on a large scale, and not as a matter of abstract theory, is the proper starting place. Have there been any decently economically egalitarian societies that have not been relatively monogamous? And if so, what were they like?

This form of argument cuts against the libertarian grain, alas - but having a pretty good sense of what the breakaway Mormon sects, the fundamentalist Mormon sects in Arizona and Texas, actually do in actual social practice ought to count for something. It is an argument for taking the social realities of the fundamentalist Mormon groups into account as well as abstract libertarian theory, and the same being true for Muslim polygamy, or polygamy in other cultures and societies being gradually brought into this one through the interflow of populations.


Can A Suspect Be Tased Into Complying With a Court Order?: Over at Simple Justice, Scott Greenfield is blogging about a very unusual New York state court decision on whether a suspect can be tased into compliance with a court order to submit to DNA testing.

  In this case, the government obtained an Order to Show Cause (OSC) ordering the target to appear and show cause as to why he should not be ordered to submit to a buccal swab DNA test. The government sought the DNA sample to see if the suspect's DNA matched samples collected in a robbery and kidnapping investigation. After the suspect did not respond to the OSC, the government sought and obtained an order, apparently based on a probable cause affidavit, requiring the suspect to submit to the DNA test. The suspect complied, but then the government accidentally sent the DNA sample to the wrong lab, where the sample was compromised.

  The government then applied for another order, essentially identical to the first one, and the court granted it. However, the suspect refused to comply with the second court order: He said that he had complied already and that he wasn't going to comply again. The police took the suspect to the stationhouse, and they then called a prosecutor to ask what to do. The prosecutor said that it was okay to ouse force to carry out the order but they should use as little force as possible. The police knew the suspect to have a history of violence, so they believed that it wouldn't work to just hold down the target while taking the cheek swab. The police then informed the target that they were going to taser him on the "drive stun" setting, the lowest setting, and that it would be unpleasant, but that they were going to do it to get him to comply with the order. The suspect continued to refuse to comply with the order.

  The police then tasered the suspect using the "drive stun" setting for about 2 seconds. The suspect yelled out, and then agreed to comply with the DNA test. The DNA test yielded evidence that he was the man who committed the earlier kidnapping and robbery, and the suspect moved to suppress the evidence on the ground that the sample was obtained as a result of excessive force in violation of the Fourth Amendment because the DNA sample was a fruit of the tasering.

  The court concluded that the use of force was reasonable and thus denied the motion to suppress. The court noted that the best approach would have been to bring teh suspect before the court, to give the judge an opportunity to explain the situation and consider criminal sanctions for the suspect's refusal to comply. But given that this hadn't happened, the court had to confront the Fourth Amendment question directly. The court then reasoned that the court order was essentially a Fourth Amendment warrant, and that the police have the power to use reasonable force to execute a warrant. The court then concludes that on the limited record before it, and given the specific facts of the case, the use of force was reasonable.

  [Added later: I should think it pretty obvious that this is a bad situation the police put themselves in. As the judge pointed out, the proper step would have been to take the defendant before the judge. It was overzealous and unwise to actually try to force compliance by some means, much less a taser. Still, in this post I want to put aside the poor judgment of the police and instead focus on the Fourth Amendment issue: should the court suppress the evidence?]

  Off the top of my head, I find it somewhat hard to know whether this case is persuasive as a matter of existing doctrine without having access to the same record that the court was reviewing. The court explains its judgment as a reaction to a specific record that is only partially explained. However, my basic take on the case is that the correctness of the court's framework depends on whether the court's order is truly in the nature of a Fourth Amendment warrant. The court is right that the Fourth Amendment allows the police to use reasonable force to execute a warrant. If the order did in fact give the police the authority to obtain the swab, then they had the right to use reasonable force to get the target to comply; in that sense, the order was like an arrest warrant, and the use of force was like a use of force to overcome resistance to arrest. Whether the use of force was reasonable then becomes a pretty fact-specific question.

  On the other hand, it's not entirely clear to me from the opinion if the order actually authorized forcibly obtaining the DNA sample, and whether the order was in fact a warrant for Fourth Amendment purposes. Other court orders such as subpoenas are not enforceable by force; the government must seek enforcement from a court for willful failure to comply. (There are also some interesting questions about about whether the use of excessive force in a setting like this can lead to suppression.) So in the end my take on the case depends on some pretty detailed aspects of the record that we don't quite know. Still, it seems like a very interesting case, much worth blogging. Thanks to reader David Bork (not to mention Scott Greenfield) for bring it to my attention.

  UPDATE: Some commenters object to the fact that the officers used force to get the suspect to act "voluntarily" rather than used force directly on the suspect: The suggestion is that the use of force was essentially torture. Putting aside the factual question of whether use of a taser on its lowest setting for 2 seconds is "torture," I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them. In particular, the option the officers faced in this case was holding down the suspect and forcing his mouth open to do the swab. The officers rejected that option because they thought they could get hurt given the suspect's history of violence. Do readers think that this would have been preferable, or that it should be constitutionally required? I've found this Ninth Circuit case suggesting that there isn't much of a difference, if any, but I am no expert on the question. I'm interested in the responses, so please feel free to comment.

Government Investigations:

I wanted to blog a bit more about the Ninth Circuit's Nelson v. NASA case, on which the Ninth Circuit has just denied rehearing en banc. In Nelson, various contract employees working indirectly for NASA, challenged NASA's new background check policy, among other things under a federal constitutional right to informational privacy. The Ninth Circuit found that the plaintiffs were likely to succeed on this claim, and thus held that they were entitled to a preliminary injunction against enforcement of the policy. In particular, the Circuit concluded that it was likely unconstitutional for the government to ask various people who knew the employees — at least "references, employers, and landlords" and perhaps others — broad questions. Such question presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe, and the presumption couldn't be overcome on the grounds that the questioning was "narrowly tailored" to the government's interests

Form 42 [which was sent to people who had dealt with the employees] solicits “any adverse information” concerning “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” and “other matters.” These open-ended questions are designed to elicit a wide range of adverse, private information that “is not generally disclosed by individuals to the public”; accordingly, they must be deemed to implicate the right to informational privacy....

Considering the breadth of Form 42’s questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for “any adverse information about this person’s employment, residence, or activities” may solicit some information relevant to “identity,” “national security,” or “protecting federal information systems,” but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing “narrowly tailored” about such a broad inquisition.

But despite the insistence that the opinion is quite narrow, its implications seem stunningly broad; and in particular, it seems to me they would dramatically affect the course of ordinary government investigations.

Say a police officer — or SEC investigator or FBI agent or a wide range of other government investigator — is trying to investigate a crime. Naturally, to get a search warrant for someone's property, the officer would need probable cause to believe that the warrant would uncover evidence of a crime. But the officer often doesn't start out with such probable cause.

Instead, I take it that the officer would often ask around about each person who might be involved in the crime, even if chances are that the person isn't involved. He might go to landlords, employers, hotel clerks, acquaintances, and others, and ask questions, including open-ended questions. And the questions might deal with private matters, such as the suspect's romantic entanglements, sexual orientation, political ideology, financial pressures, medical problems, and the like. It would be wrong and possibly unconstitutional for the government to misuse this information, for instance by arresting and prosecuting the suspect because of his political views, even when he wouldn't have been arrested and prosecuted for the same offense if his views were different. But getting this information might well be helpful, depending on the circumstances, since it might reveal possible motives, associates, and other important information.

What's more, the police officer would generally be able (with a prosecutor's help) to order someone to answer such questions, by subpoenaing them to testify. The officer and prosecutor can get even highly confidential information, such as bank records, records of the telephone numbers the person has called, and the like, without probable cause: All it would take is a subpoena to the bank, and such subpoenas to third parties don't violate the Fourth Amendment, even when there is no probable cause for them. I realize that many disagree with this position, as to subpoenas (though I haven't heard much disagreement as to the asking around mentioned in the preceding paragraphs). But it is pretty clear that this is indeed the Court's view of the Fourth Amendment.

There are some limits on this; for instance, the officer can't subpoena privileged lawyer-client communications, and there are likely limits on the officer's power to subpoena abortion records and the like. But generally speaking a great many records, including bank and telephone records, are available without the need for probable cause or any showing of "narrow tailoring." In fact, the way that officers are supposed to develop the probable cause needed to get search warrants is precisely by gathering information without search warrants — including asking questions of people who might know the information.

The Ninth Circuit's decision, however, suggests that all such investigations are potentially subject not just to the Fourth Amendment (and the Fifth Amendment privilege against self-incrimination, when it comes to coercive questioning of the suspect himself), but also to the right of privacy. After all, the police officer or other government investigator is as much a government actor as is NASA. (The right to privacy, if it applies here, applies equally to the federal government and state and local governments.) If anything, the constitutional constraints might apply even more to the government acting as sovereign to investigate private individuals, as opposed to the government acting as employer to investigate its own employees or contractors. They certainly wouldn't apply any less.

So say an officer is investigating an alleged theft, and there a bunch of people who had the opportunity to commit the theft, though the great majority of them are likely be innocent. The officer will no longer be free to ask people broad questions about what they know about a potential suspect, and in particular whether they have any information about their "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," or "other matter." After all, while asking such questions "may solicit some information relevant to [the investigation], there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests." How could there be? The officer doesn't know yet exactly what's going to be relevant, and might not know until much later, when a casual revelation that Joe was sleeping with Mary, coupled with the revelation that Mary had an expensive cocaine habit, might explain why Joe might have had a special motive to commit the crime.

And presumably asking around about a person's sexual partners, political beliefs, medical condition, financial obligations, and the like would be even more likely unconstitutional, since that would be direct questioning about matters that are most likely to be seen as private. And yet, as I mentioned above, that sort of picture of people's lives is often vital to figuring out who might have the motive to do something, or who his likely accomplices might be, or even who else might be worth asking about the matter.

Now maybe this is the way things should be. Maybe even when there's no search or seizure for Fourth Amendment purposes, and when there's no compelled self-incrimination for Fifth Amendment purposes, there should be an extra constitutional requirement that asking around about a suspect be "narrowly tailored" if the questioning may reveal private information. Maybe the police shouldn't ask broad questions, but be limited to focused questions that are directly supportable at that point by what the police already know.

But I'm pretty skeptical that this would indeed be a good constitutional law rule — and I see no basis in Whalen or in the Court's other precedents for suggesting that there's a constitutional right to information privacy that so constrains the government's asking questions about people. And one way or the other, it seems to me that the Nelson decision has implications far beyond the government's background checks of its own employees.

Related Posts (on one page):

  1. Government Investigations:
  2. Turducken

Predicting the Sotomayor Vote:

The National Journal's Ninth Justice blog has posted expert predictions on the timing and final tally of the vote to confirm Sonia Sotomayor to the Supreme Court. Most of the "experts" they asked expect a vote before the August recess, and somewhere between 63 and 80 votes in favor of her confirmation. If I had to make a prediction, I'd guess that the vote will actually occur just after the August recess, and that somewhere around 75 Senators will vote in favor of Judge Sotomayor's confirmation. Of course, this prediction is worth about as much as the paper it's printed on.



makes its first appearance in a published court opinion. For more on this beast, see here. For links to the other opinions in the case, see here. For my earlier thoughts on why the panel decision was mistaken, see here. I might have more after I read the opinion related to denial of rehearing en banc, and reread the panel opinion.

Related Posts (on one page):

  1. Government Investigations:
  2. Turducken

Podcasts on 7th Cir. handgun case, and Montana Firearms Freedom Act:

Just uploaded: Jon Caldara and I discuss the 7th Circuit decision in NRA v. Chicago. 12 minutes. In another podcast, Amy Oliver and I discuss the Montana Firearms Freedom Act, which attempts to exempt guns manufactured and possessed within Montana from federal laws based on the interstate commerce power. 16 minutes.


Justice Kennedy’s Date With “Dignity”?: Political science professor Helen Knowles, the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty has posted Justice Kennedy’s Date With “Dignity”? (Part I: Race and Human Dignity), the first of a two-part series of blog posts on the Rowman & Littlefield blog about Justice Kennedy and pending Supreme Court cases. Here is how it starts:
Watchers of the work of the U.S. Supreme Court eagerly anticipate June, when that institution frequently announces several blockbuster outcomes in the cases that remain to be decided. As the Court brings its term to a close at the end of that month, anticipation mounts as commentators speculate about possible votes and the likely identity of the justices who will pen opinions (for the majority, and separately in concurrences and dissents). June 2009 promises to be no different.

It is perilous to try and predict the direction of the twists and turns that justice will take at the Court during what remains of this year of its work. To be sure, we know that the Term’s end will bring the retirement of Justice Souter, and the inevitable feeding frenzy that will accompany the confirmation hearings of his nominated successor, Judge Sotomayor. Before that happens, however, several major cases remain to be decided. While the results will not be known until the justices choose to make them public, there is one thing about which most commentators agree, regardless of ideology. Articles in the both the New York Times and the Wall Street Journal reach the same conclusion: In Ricci v. DeStefano and Northwest Austin Municipal Utility District No. 1 v. Holder, the man at the jurisprudential center of the Court will be the deciding vote; the key to these cases will be Justice Anthony M. Kennedy. What commentators ignore, however, is what might actually be the key to these cases as Justice Kennedy sees them. That key is the concept of “dignity.” During his two decades on the Court, this concept has been just as significant to Kennedy’s jurisprudence as has been the “man in the middle” role he has played on a bench frequently split between four more conservative and four more moderate men and women.

In this, the first of two blog entries, I look at the potential “dignity” reading that a Kennedy-authored opinion might give to the issues involved in Ricci v. DeStefano (a case which has taken on added significance since President Obama’s nomination of Judge Sotomayor – who was part of the lower appeals court panel of judges whose decision was appealed to the Supreme Court (her participation in the case is discussed over at Scotusblog)). Next time, I will offer a similar discussion of Northwest Austin Municipal Utility District No. 1 v. Holder.

Special Purpose Entities and Off-Balance Sheet Accounting:

The WSJ reports today that financial services industry groups are pressuring Congress and the administration to delay or weaken the effects of an accounting rule change slated for next year that would force banks and other financial services firms to keep, or take back, on their balance sheets assets shifted into special purpose entities (SPEs or SPVs):

[T]he group of financial organizations is trying to put the brakes on the off-balance-sheet accounting measure, which would force banks to bring hundreds of billions in assets back onto their balance sheets at the beginning of 2010, effectively forcing them to set aside more capital. Some accounting experts say they aren't surprised by the banking industry's latest effort. "Here we go again. They will get out their checkbooks and go to the Hill," says Lynn Turner, the Securities and Exchange Commission's former chief accountant.

The rule would apply to existing off-balance-sheet entities, known as qualifying special purpose entities, which were generally used by banks to package and sell off to investors loans they had made.

In general, I favor the rule change, as I also favor the earlier mark-to-market rule relaxation - although each with important reservations and caveats. The well-known accounting expert Robert Willens commented in the Journal article:

The rule "includes securitization vehicles that played a large role in the bubble and allowed banks to operate with low levels of capital even though they had exposure to these assets that weren't on the balance sheet," says accounting analyst Robert Willens.

I partly agree and partly disagree with that characterization, which explains my cautious, caveated view of the rule requiring that SPEs be consolidated. I don't think, on what I've seen so far at least, that it was securitization as such (including asset securitization that goes beyond simply the basic concept of pooling loans and selling interests in the pool, to include the much more legally specific concept of securitization involving a sale by the originator of the loans into a SPE legally insulated from the originator) that was most important in leveraging up the financial services industry and financial markets. More important than the bottom level securitizations, so far as I can currently tell, were the credit derivatives built on top of the securitizations. I might turn out to be wrong about that, but it's my current sense of the leverage (see this post on the excellent Accrued Interest blog for a sense of just how dicey these could be).

In looking to prevent a re-run of the crisis, I think I would start (on this particular regulatory bit of things) at the top of the leverage chain and ratchet down from there, rather than starting with securitizations as such and working my way up. There would still be good reasons to require consolidation of SPEs back onto originator balance sheets in some circumstances, I'm sure, but I think I'd start in (this area of) regulatory reform with the most (over)-leveraged parts. But I'm very, very interested in hearing views on this, as I could be persuaded otherwise.


Making Things Simple:

I was recently reminded of one of my favorite quotes, generally attributed to Albert Einstein:

The best explanation is as simple as possible, but no simpler.


Google Ads Moves in Mysterious Ways, Its Wonders To Perform:

One of the ads that's now running here (I saw it on the comments page for the Muslim population post) is for Muslima.Com, "The International Muslim Matrimonials Site!" (exclamation point in original). I wish all our Muslim readers -- as well as all our other readers -- happy marriages, and if such a happy marriage results from the ad, I will be very pleased.

Thanks to commenter RPT for the heads-up.


You Haven't Forgotten the Tonnage Clause, Have You?

The Second Circuit hasn't.


Big in Japan:

I'm please to report that there's now a published Japanese translation of Academic Legal Writing (translated by Professor Makoto Ibusuki and Ms. Naoko Iwakawa):


How Many Muslims Are There in the U.S.?

I should have noted in my post below that the 5-to-7-million American Muslims estimate was one of the higher-end estimates. Estimating the Muslim Population in the United States by Tom W. Smith of the National Opinion Research Center (2001) reports that

The best, adjusted, survey-based estimates put the adult Muslim population in 2000 at 0.67 percent or 1,401,000, and the total Muslim population at 1,886,000. Even if high-side estimates based on local surveys, figures from mosques, and ancestry and immigration statistics are given more weight than the survey-based numbers, it is hard to accept estimates that Muslims are greater than 1 percent of the population (2,090,000 adults or 2,814,000 total).

I haven't examined the matter closely myself, so I don't have a truly informed opinion. But to my knowledge, Smith is quite well-regarded in the field, and is the director of the very well-regarded General Social Survey. So at the very least the 5 to 7 million American Muslims figure should be viewed with some skepticism, recognizing that the number might be 2 to 3 million instead.

UPDATE: Thanks to commenter wm13, here's a 2007 Pew Research Report estimating the number at about 2.35 million. Pew, like the GSS, is a well-regarded survey organization, which to my knowledge has no axe to grind on this issue.


Toward Greater Congressional Transparency:

House Speaker Nancy Pelosi should be commended for her recent effort to increase transparency and accountability within Congress. The Washington Post reports:

House Speaker Nancy Pelosi (D-Calif.) said yesterday that the House will soon start posting online quarterly records of how members use their personal office funds, giving watchdog groups a chance to examine staff salaries and other spending by members of Congress.

Congress has long published such information in a volume called the Statement of Disbursements, but it will now be released online, which Pelosi said would increase transparency. The change comes as members of the British Parliament are under fire for spending huge sums of taxpayer money through their public accounts on such expenses as cleaning a moat and having light bulbs installed in their homes.

"Consistent with my goal to increase transparency and ensure greater accountability to the public, please take all steps necessary to ensure that the quarterly Statement of Disbursements be made available online free of charge to the public and on a suitable House website," Pelosi wrote yesterday in a letter to the chief administrative officer of the House.

Now if only Congress were as transparent with regard to health care reform.


The White House Case for Sotomayor:

NRO has posted a copy of the White House talking points defending Sonia Sotomayor that were provided to GOP Senators in advance of the judge's early meet-and-greets on Capitol Hill.


Koh, No!

In a forthcoming article for America's 1st Freedom, I detail Harold Koh's expressions of strong support for severe anti-gun laws, his stated intention to use his government position to promote such laws, and various techniques of transnationalism by which he could, as Legal Adviser to the U.S. Department of State, advance his agenda.


The Obama Effect: US more popular in Germany:

A recent poll by finds that German public opinion of the United States has improved notably in recent months. Asked if the U.S. is playing "a mainly positive or mainly negative role in the world," the positive side won 44% to 34%. Last year, "mainly positive" had only 20% support. An amazingly high 89% of Germans trusted Obama to do the right thing regarding world affairs.

The German public does disapprove, by 37% to 54%, of Obama's escalation of the war in Afghanistan, and by 52% to 42%, favors immediately ending Germany's participation in that war.


Is the U.S. "One of the Largest Muslim Countries in the World"?

One view (at first endorsed by Andrew Sullivan, though later changed to "see[ing] the deeper point"):

I think that the United States and the West generally, we have to educate ourselves more effectively on Islam. And one of the points I want to make is, is that if you actually took the number of Muslims Americans, we'd be one of the largest Muslim countries in the world. And so there's got to be a better dialogue and a better understanding between the two peoples.

Another view. I haven't independently checked the data, but I'm pretty sure that with about 5 to 7 million Muslims [UPDATE: that seems to be one of the higher-end estimates], we don't even make the list. Certainly "one of the largest" is subjective enough to leave some wiggle room, but not that much wiggle room. If we're one of the largest, then Burkina Faso (with more Muslims than there are in America, and according to Wikipedia, #30 on the list) must be a veritable giant of a Muslim country.

A small matter, but it struck me as worth noting.


"Shared Racial Heritage" Not Relevant To Decision Whether To Terminate Parental Rights:

From In re the Termination of Parental Rights to MyKarla M. (Wisc. Ct. App. June 2):

MyKarla was born in Antigo in August 2004. A few days after MyKarla’s birth, her mother, Misty, moved with MyKarla to Milwaukee to join Bobby. In January 2005, Misty and MyKarla returned to Antigo. While in Milwaukee, Misty and MyKarla briefly resided with Bobby’s mother. Bobby lived with them part of the time, but he was also incarcerated part of the time. When Misty and MyKarla moved back to Antigo, MyKarla was four months old. For the next year, Misty and MyKarla lived by themselves in Antigo, and Bobby was in Milwaukee.

In January 2006, Langlade County took MyKarla into custody following a drug raid at Misty’s apartment. Two weeks later, the County placed MyKarla in her maternal aunt’s home. The County then alleged, and the court found, that MyKarla was a child in need of protection or services (CHIPS). The CHIPS order continued placement with MyKarla’s aunt.

Two years later, the County filed a petition to terminate Bobby and Misty’s parental rights. Following a trial, a jury found grounds existed to terminate the parental rights of both parents.

At the dispositional hearing, the court found both parents unfit. Misty then voluntarily terminated her parental rights. As for Bobby, the court concluded it was also in MyKarla’s best interests to terminate his parental rights....

The second part of Bobby’s attack on the circuit court’s discretion concerns its failure to consider the effect of severing MyKarla’s ties to her African-American relatives. Wisconsin Stat. § 48.426(3)(c) requires courts to consider a child’s substantial family relationships. Bobby does not argue the four months MyKarla resided with Misty at his mother’s house created a substantial relationship. Nor does he assert he has any other relatives who forged a bond with MyKarla. Instead he contends that “a shared racial heritage with relatives also creates a substantial relationship concerning matters of culture and history.”

Wisconsin law does not require courts to consider race when determining whether to terminate parental rights, and Bobby cites no authority holding there is such obligation. Instead, he cites as persuasive a twenty-six-year-old case from Pennsylvania. See Miller v. Berks, 465 A.2d 614 (Pa. 1983). In Miller, the court determined Pennsylvania’s statutory requirement that placement petitions identify the racial background of adopting parents and potential adoptees indicated the legislature intended race to be a factor in determining the best interests of the child. The Wisconsin placement statute contains no such requirement, see Wis. Stat. § 48.837(2), nor have Wisconsin courts interpreted either our state’s termination of parental rights or adoption statutes to require consideration of race.

In Wisconsin, courts must only consider whether it would be harmful to sever the child’s substantial relationships with parents or relatives. Wis. Stat. § 48.426(3)(c). A shared racial heritage does not by itself create a substantial relationship. If it did, any familial relationship would be substantial, and the use of the word would be surplusage — a result we avoid when discerning the meaning of statutes.

Bobby does not allege MyKarla has any substantial relationships with her African-American relatives, except to the extent she shares a racial heritage with them. Nor does the record indicate any. Therefore, because MyKarla has no substantial relationships with her African-American relatives, the court was not required to consider the effects of severing her legal ties to them.

UPDATE: From commenter ARCraig: "Clearly a mixed-race child could never be raised successfully by their white mother's family. It's not like such a person could ever be elected President or anything."


Wednesday, June 3, 2009

No Establishment Clause Violation in San Francisco's Condemning the Catholic Church's Refusal To Help With Adoptions by Same-Sex Couples:

So the Ninth Circuit has just held in Catholic League for Religious and Civil Rights v. City and County of San Francisco. I argued likewise when the matter first arose, though I also disapproved of San Francisco's resolution on nonconstitutional grounds.


Chrysler Bankruptcy Case to Be Heard by Second Circuit Friday:

Bankruptcy judge Arthur Gonzalez has permitted an appeal by Indiana pension funds to the Second Circuit on his ruling allowing a sale of the company to Fiat. According to the NYT:

The judge, Arthur J. Gonzalez, said that an appeal that sought to block the sale to Fiat could be heard directly by the United States Court of Appeals for the Second Circuit, a move that the American carmaker had wanted. Normally, appeals to bankruptcy court decisions are heard in federal district court, which sits directly above bankruptcy court in the judicial hierarchy. But cases may be moved directly to the appeals court if a judge finds it necessary.

“This case involves a matter of public importance, and an immediate appeal may materially advance the progress of this case,” Judge Gonzalez wrote in his order.

The appeal was filed by lawyers for a group of Indiana pension funds, which objected to the sale because they were seeking more compensation for the Chrysler secured debt they hold.

The WSJ reports today that the Second Circuit will apparently hear the appeal on Friday:

Chrysler LLC's exit from bankruptcy could hit a speed bump Friday when a federal appeals court is scheduled to hear from a group of Indiana state pension and investment funds objecting to the auto maker's reorganization.

The funds are trying to block the sales of most of Chrysler's assets to Fiat SpA, contending the deal's terms regarding secured lenders are unconstitutional.

The sale was approved on Sunday by the U.S. Bankruptcy Court in Manhattan, but the funds filed an appeal. The U.S. Court of Appeals for the Second Circuit will hear the case on Friday.

Perhaps Co-Blogger Zywicki can explain what all this means for bankruptcy proceedings and likely outcomes. It seems to me unlikely, but I defer to bankruptcy experts, that lenders will win the appeal. The WSJ article talks with a bankruptcy expert:

A lot is riding on the outcome. The Obama administration is hoping a speedy restructuring of Chrysler through bankruptcy will signal the road ahead will be smooth for General Motors Corp., which the Treasury ushered into bankruptcy protection on Monday. Moreover, Fiat can back out of the deal if bankruptcy proceedings go beyond June 15.

"You can't take away from the fact that this is a huge case. There's a huge amount of public interest," said Earle Erman, a bankruptcy attorney with Erman, Teicher, Miller, Zucker & Freedman, a Southfield, MI based firm. "This is obviously an unusually large case."

A ruling in the lenders favor appears unlikely given the bankruptcy code primarily requires they get a fair repayment on their investment, Mr. Erman said. He declined to speculate on a separate argument they are making challenging the legality of providing a manufacturer like Chrysler money from TARP, which was designed for financial institutions.

People close to the case say that if the pension funds lose their appeal, their chief lawyer, Thomas Lauria of White & Case, may try to take the matter to the Supreme Court, a move that could impose a significant delay on Chrysler's reorganization.

I wanted to note, further to an earlier post, that at issue are rights of the secured/senior creditors. They argue that the effect of the reorganization plan is to benefit the junior creditors, and the union especially, at the expense of the seniors:

The Indiana pension funds — the Indiana State Teachers Retirement Fund, the Indiana State Pension Trust and the Indiana Major Moves Construction Fund — own just $42 million of Chrysler's $6.9 billion in secured debt, and the other secured lenders have already agreed to accept a settlement paying them about 29 cents on the dollar.

The Indiana funds bought Chrysler's debt a year ago for 43 cents on the dollar, and are arguing the restructuring plan is unfair because U.S. law normally puts secured lenders at the front of the line for repayment. They say junior creditors are being put ahead of senior secured lenders in the plan.

There are two questions here. One is whether it is in fact true that the reorganization plan (the same basic issue arises for the GM bankruptcy) benefits junior creditors, starting with the UAW, at the expense of the senior creditors. The second is whether the senior creditors have in fact been dealt with unfairly, given that they could, in principle, go to court — and as the Indiana pension funds have done. Although I would welcome hearing anything that Todd might want to say, the answers seems to me pretty clearly, yes and yes.

In both Chrysler and GM, the junior creditor UAW wound up with far more equity — that is, whatever it is, however, speculative, that the parties thought might be of value in the future — than the senior creditors did. It doesn't really help to say that absent the government bailout, they would have done even worse. Bankruptcy, as I understand it on this matter, is about the relative claims of the parties, relative to each other, seniors and juniors. In fact, although a number of commenters raised it in a post of mine yesterday, I don't see many financial commentators disputing that at all (although, to be sure, I won't rule out confirmation bias!).

This leads directly to the second question — why, consistent among other things with fiduciary duty, didn't the senior creditors, or more of them, contest this reorganization and assert their rights? I said yesterday that they were "strong-armed" by the administration which, after all, has extended financing to many of them and so altered their incentives with regards to asserting legal rights. Mirabile dictu, today's Washington Post editorial on the GM bankruptcy says (emphasis added):

Also worrisome was the strong-arming of the company's bondholders, who got far less equity in return for their money than the UAW, the president's political ally. The administration wants to spin GM back to the private sector as soon as possible. But private investors may have been durably scared by the union's display of clout. Indeed, the UAW boasted to its members that it blocked a plan to build GM cars in China and "negotiated new opportunities for UAW involvement in future business decisions."

The retort says, look, the seniors could have exercised their rights and gone to court, but they didn't. If it's because they received government money and so have to dance to the government's tune, that is in the interests of the taxpayers, who are otherwise going to lose as value is transferred first to the creditors in bailing them out, and then to creditors when they take money that would otherwise go to fixing Detroit.

The counter-response is that the problem is not so much one of junior and senior creditors, it is, as David Skeel has noted, a problem of politically favored insiders and politically disfavored outsiders. It is highly unlikely to be efficient, either in the allocation of credit in the economy or in the making of cars, for the government to be naming winners and losers not even on the basis of its (likely dubious) estimations of efficiency, but instead on the basis of the UAW insiders and creditor-fiduciary outsiders.

My experience negotiating lending deals in the developing world suggests that the most important characteristic is not creditor-debtor, but insider-outsider when it comes to efficiency when a government is somehow involved. In the areas I am familiar with, independent media, government involvement comes in the form of broadcast licenses, newsprint monopolies, government agency advertising, all sorts of ways. Crony capitalism in one way or another, rent-seeking, as Megan McArdle explains:

Bankruptcy is often portrayed as a question of creditors v. debtors, and of course that's not a ridiculous frame. But just as important is the tension between insiders and outsiders. This conflict has existed for as long as we've had insolvency, and it doesn't match up to the creditor/debtor divide .... I suspect Obama views his administration's actions as moving along the X axis towards a more debtor-friendly system. But in fact, Chrysler, not the UAW, is the debtor, and it's not likely the company would have ended up in liquidation. The administration's actions weren't debtor-friendly, they were insider friendly. This was classic collusion among creditors, and it's why the parts of the bankruptcy law that deal with Section 363 sales spend so much time talking about the importance of avoiding sham transactions. Cutting back on that sort of abuse was at least as important an achievement as giving debtors a fresh start.

It is far from mad to point out, as McArdle does, that the current Detroit policies are far less about the rights of creditors than they are about the privileges of political insiders. Yet the frame against which the Second Circuit will consider this will be one of creditors versus creditors versus debtors, in the context of something approved by a bankruptcy judge who notes that 90% plus of the senior/secured creditors have approved. The "strong-arming" that caused them not to enforce their legal rights — the frame of favored insiders and disfavored outsiders — will not be on the table. In my estimation, that's to be regretted because, yes and with all due respect to everyone, it does remind me slightly too much of deals in Skopje and Belgrade.


Gay marriage in New Hampshire:

Today the state legislature passed, and the governor quickly signed, a same-sex marriage bill. (It becomes effective January 1.) Six states now permit the marriages of gay couples under state law. Three of those have done so by legislative action.

Congratulations to New Hampshire Freedom to Marry, which lobbied for the bill, and to gay families in the state.


Consensual Homosexual Conduct, in Certain Circumstances, as "Conduct Unbecoming an Officer and a Gentleman":

An interesting decision of the U.S. Air Force Court of Criminal Appeals (U.S. v. Harvey), handed down two months ago but just now appearing on Westlaw:

In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges to Article 125, UCMJ, 10 U.S.C. § 925, based on [Lawrence v. Texas], must be addressed on an as applied, case-by-case basis. Marcum identified a three-part test for addressing Lawrence challenges within the military context. Under the three-part test, courts ask: (1) was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court in Lawrence; (2) did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and (3) are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest? ...

[The court answered questions 1 and 2 by concluding that the private, consensual conduct here was within the Lawrence sexual autonomy right.-EV] [As to question 3, t]he appellant's case did not involve a situation whereby the appellant was in a superior-subordinate relationship with his paramour. His case also does not involve the violation of the law, military instructions, regulations, or policies as a precursor to his conduct. Lastly, the appellant's conduct did not involve a situation wherein the appellant was involved in a sexual relationship with the married spouse of another military member. In short, there are no additional factors relevant solely in the military environment that affect the nature and reach of the appellant's Lawrence liberty interest....

[W]e must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman. Axiomatically, a "higher code termed honor" holds military officers to stricter accountability than their enlisted and civilian counterparts.

The command structure and the necessity for good order and discipline prohibit officers from acting in ways that "bring dishonor or disrepute upon the military profession which [they represent]." The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal.... All that is required is for the offender's conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. Moreover, military law is replete with examples of conduct protected by the Constitution when engaged in by civilians but which becomes criminal when engaged in by military members.... [T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ....

In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), [Footnote: These rumors abounded throughout the Incirlik Air Base and local Turkish communities and caused at least one Turkish national, Mr. MH, enough consternation that he reported the appellant's conduct to base authorities and took actions into his own hands by secretly videotaping the appellant's act of fellatio] evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

The court affirmed the conviction, which ultimately yielded only a reprimand.

UPDATE: CAAFlog has more on this; thanks to commenter Cloudesley Shovell for the pointer. Thanks also to several commenters who pointed out that my initial reading of the case -- that the defendant was dismissed as well as being reprimanded -- was mistaken; the convening authority apparently reduced that initial sentence to a reprimand alone.


Well, That Was Quick:

The NRA reports that it filed its petition for certiorari in NRA v. City of Chicago today, the day after the Seventh Circuit handed down its decision. (The NRA had 90 days to file.)

UPDATE: I've uploaded the petition here.


L.A. Times Coverage of Second Amendment Incorporation Decisions:

The Seventh Circuit decision (from Chicago), holding that the Second Amendment doesn't apply to the states, is covered in a nearly-800-word story today. The Ninth Circuit decision (from Northern California) this April, holding that the Second Amendment does apply to the states, wasn't covered at all by the Times at the time. [UPDATE: I realized that my earlier locution here, "wasn't covered at all," was ambiguous; I meant wasn't covered at the time, but in context it could be read as saying that the article about the Seventh Circuit case doesn't mention the Ninth Circuit decision -- it does, about halfway down.]

To be sure, there are possible explanations: Today's story was by the Times' Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it's made higher profile by the controversy about Judge Sotomayor's participation in the Second Circuit's no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit's incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

So it seems to me that both cases would have been newsworthy to the L.A. Times, the Ninth Circuit case at least as much as the Seventh Circuit case. But as I noted shortly after the Ninth Circuit decision, the Ninth Circuit case wasn't covered in the L.A. Times at the time.

Likewise, the Washington Post mentions the Seventh Circuit case (though in a heavily Sotomayor-focused article) and didn't mention the Ninth Circuit case when that came down.


Bond Markets and Republics:

The Duc de Saint-Simon, in his famous Memoirs, wrote of his opposition to Louis' embrace of John Law's "System" of a French state bank issuing paper money, back when Law proposed the scheme in 1715. The estimable Saint-Simon noted, with extraordinary shrewdness, that such a "System," a state bank with the ability to issue fiat money and float bonds, could only work

in a republic or in a monarchy like England, whose finances are controlled by those alone who furnish them, and who only furnish as much as they please. But in a State which is weak, changeable, and absolute, like France, stability must necessarily be wanting to it; since the King, or in his name a mistress, a minister or favorites ... may overthrow the Bank — the temptation to which would be too great, and at the same time too easy.

The comparison (emphasis added) is arresting - the republic of merchants, self-controlling from self-interest alone the issuance of debt and paper money by the sovereign, as against absolutist France, "absolute" and therefore "weak." And later the Duc goes on to remark that absolutist France must lose wars to parliamentary England, because the absolute Louis must borrow for his wars at interest rates far exceeding those of England, whose war bonds are sufficiently largely purchased voluntarily by its own population as to be trusted by foreign investors as well. The English can conduct many more campaigns over many more years than the French.

I draw this from the marvelous book by James Macdonald, A Free Nation Deep in Debt: The Financial Roots of Democracy (FSG 2003), which is even better on these topics of financial-political history than Niall Ferguson's early, then-still academic work on the bond markets and war.

But the lesson is not precisely what one might first have thought - that excessive government debt is the road to ruin. It is. The lesson of Macdonald's book is a determinedly libertarian one. Provided that the bond financing is provided voluntarily by those who will have to service and pay it through their taxes, and who will have to bear the risks of the bonds losing value if the money supply is inflated to void the debt, and who will bear the risk of default by the state (enough among the citizenry so that foreign investors do not dilute those conditions and re-align those interests), then debt is a mechanism that chains government.

The title, A Free Nation Deep in Debt, comes from an anonymous eighteenth century pamphlet, expressing a common view of the philosophes, that sovereign debt owed to a state's own citizen-creditors, was a bulwark against absolutism, despotism and tyranny. Much of the rest of Macdonald's book goes on to show historically how the relationship between citizenry and creditor/bondholder was gradually broken both from 'within' parliamentary republican society as class interests within society increasingly diverged along with the political power attached to them, and from 'without' through increasing amounts of foreign investment that gradually re-aligned incentives of state, citizens, and foreign creditors alike from what they were when foreign creditors rode along with the citizen-creditors.

So a question is, given two admittedly highly stylized conditions — 'citizen-creditors' or, alternatively, the separation of the economic bondholders from the political citizens, which is to say, the separation of economic ownership from political control — which better characterizes where we are headed today. The existence of high levels of state debt as such, for the very particular purposes of this question, does not answer things. The question asks the relationship between economic ownership and political control. A 'republic of merchants' or a state that is absolutist, weak, and changeable?


General White Attitudes Towards Intermarriage with Blacks:

Continuing with the discussion of Jewish attitudes towards intermarriage with blacks, co-blogger David Bernstein and Ta-Nehisi Coates (in one of the posts that started this exchange) suggest it would be useful to compare Jewish attitudes with those of other whites. We do in fact have data on the percentage of whites who would oppose a "close relative's" decision to marry a black. In this 2001 poll, 22% of whites said that they would be opposed. A more recent 2007 survey of New York opinion found that 23% of New York whites take that view.

These figures are much lower than the 38% of Jews who say they would oppose a close relative's decision to marry a black. Jews are, of course, included in the overall white numbers, but they are a negligible percentage of the total, since only about 2% of the nation's population is Jewish (though that percentage is much higher in New York state). However, comparing the 38% figure to the 22% tells us very little about relative racism among Jews as compared to other whites, or about the state of black-Jewish relations. As I explained in my earlier post, much Jewish opposition to intermarriage with blacks is probably a reflection of more general opposition any intermarriage with gentiles - opposition that is religious rather than racial in nature. By contrast, most gentile whites are Christian, as are most American blacks. So a gentile black-white intermarriage would not necessarily be an interfaith marriage. The two partners might belong to different Christian denominations. But intermarriage between different branches of Christianity is now extremely common and most American Christians no longer consider it a major compromise of religious principle. Intermarriage between Jews and Christians is more controversial, especially at a time when many American Jews worry that intermarriage might lead to the eventual disappearance of their community.

Interestingly, the GSS data linked by Coates show that 19% of blacks would oppose a close relative's decision to marry a Jew, compared to only 9% who would oppose a relative's decision to marry a generic "white." Much of the difference between the two figures may also be due to concerns about interfaith marriage rather than to anti-Semitism in the black community.

Related Posts (on one page):

  1. General White Attitudes Towards Intermarriage with Blacks:
  2. More on Black-Jewish Marriage:
  3. Jewish Attitudes Toward Intermarriage With Blacks:

Toobin on Chief Justice Roberts:

I have finally had the chance to read Jeffrey Toobin’s recent New Yorker profile of Chief Justice Roberts. (Ah, the joys of flight delays.) The premise of the article, “No More Mr. Nice Guy,” is that Chief Justice Roberts was a “stealth” nominee who is only now showing his true colors. As with all Toobin articles, it is well written, engaging, and filled with interesting tidbits. Like much of what Toobin writes about the Court, it is also infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court.

My full take on Toobin's piece, after the jump.


Help Harry Reid Read:

If you, like me, think that the Senate majority leader might want to read something written by Judge Sonia Sotomayor before he votes to confirm her to the Supreme Court, which opinion should he read? We know he'd prefer not to read any, as he said so. Yet given that Reid does not believe in reflexive deference to Presidential nominations -- as demonstrated by his opposition to some prior nominees -- and he's opined on the quality of other justices' opinions, I don't think it's unreasonable to expect him to Reid to read at least one Sotomayor opinion. As Reid may be intimidated by the sheer volume of Judge Sotomayor's output -- it may even exceed the size of the stimulus bill -- he may need help. Thus, my question: If Reid is to read only one Sotomayor opinion, which one should it be and why?

Related Posts (on one page):

  1. Help Harry Reid Read:
  2. Reid Would Prefer Not to Read:

Brown v. City of Oneonta:

Given interest in how Judge Sotomayor has approached cases involving race, the case of Brown v. City of Oneonta is worth a look. The panel opinion (as amended) is at 221 F.3d 329 (2nd Cir. 2000). The opinions respecting the denial of reharing en banc are at 235 F.3d 769 (2d Cir. 2000). Judge Sotomayor was not on the initial panel, but she did join most of Judge Calabresi's opinion dissenting from the denial of rehearing en banc in this interesting case. While this opinion may be less probative than one Judge Sotomayor authored herself, her participation in this case could help shed light on her views of the proper application of the Equal Protection Clause. It is also interesting to compare the rationale for en banc review endorsed by Judges Calabresi and Sotomayor in this case with their arguments for denying en banc review in Ricci v. DeStefano, another potentially divisive case involving race.

The full post including excerpts from the relevant opinions are below the jump.


OLC in the Budget:

The Department of Justice's FY 2010 budget request includes materials discussing and describing the role of the Office of Legal Counsel within the Department. (Hat tip: Ed Richards at LSU.)


Reid Would Prefer Not to Read:

From Politico:

"I understand that during her career, she's written hundreds and hundreds of opinions. I haven't read a single one of them, and if I'm fortunate before we end this, I won't have to read one of them,” the majority leader told reporters at the Capitol on Tuesday.

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More on Black-Jewish Marriage:

To follow up a bit on Ilya's post below, I think the survey question is too poorly worded to be used as evidence for or against racism among Jews: "Would you be in favor of a close relative marrying a black?"

As Ilya points out, the vast majority of blacks are gentiles, so some fraction of Jews, especially more observant Jews, are going to answer "no" because they oppose intermarriage. But there is a more subtle problem. I've heard several Jews, especially among the older generation, say something along the lines of, "I have nothing against people of any race. However, if my child asked me if I should marry someone black, I'd advise against it (even assuming the black person was Jewish or willing to convert). It's hard enough to be a Jew in this world [this, note, from people who often escaped pogroms, or Naziism, or official Soviet anti-Semitism]. Interracial couples face additional prejudice, and their children will face the prejudices of being black and Jewish. And it's hard enough for two people to get along in this world, especially if they have different cultural backgrounds, without facing the additional pressures an interracial marriage would bring. But if my child ignored my advice and decided to marry someone black, I'd accept him/her and welcome him/her to the family, and treat him/her exactly like anyone else." (And, I should add, I know of individuals who have followed this exact script--including having a wonderful relationship with their black child-in-law--in practice.)

Such people would have to answer "no" to the survey question, but it really doesn't speak to the issue of racism, or black/Jewish relations more generally.

UPDATE: A commenter points out that allowing societal racism to affect one's preferences for whom one's children marries helps sustain societal racism. That's true, and may make the attitude I described above morally objectionable. But it's also true that worrying about how others' attitudes will affect your children and grandchildren--assuming it's not a pretext for your own prejudices--does not mean that you share those others' attitudes, even if it hardly makes you an anti-racism crusader.

So I'll slightly modify what I said before. The wording of the question doesn't allow us to separate those who are motivated by religious opposition to interfaith marriage from those who are motivated by racial concerns, and of the latter group, those who are motivated by personal racism from those who are motivated by the effects of societal racism. The fact that some people might be willing to allow societal racism to effect their judgments does speak to the issue of racism and black-Jewish relations, but more obliquely than those who are motivated by racism.

Of course, if we are talking about the relative prejudices of Jews, as the original post by Ta-Nehisi Coates points out, the relative comparison would be "to compare the Jewish numbers ... with other whites." The survey data I've seen shows that 77% of whites state that they approve of interracial marriage in general, way up from the 1950s, when the statistics was 4% (!). I haven't seen such data broken down for Jews. I do remember hearing a few years back NPR reporting on a poll that concluded that 40+% of whites would not want a close relative to marry an Asian or a Hispanic (which I thought were surprisingly high figures), and somewhat higher numbers opposed a close relative marrying an African American.

Comments More proof that the Internet is the greatest invention ever. The quality of the jokes varies; this one is my favorite. A long setup, but well worth it.

Why Jews Should Marry Koreans:

Ilya's serious post gives me an excuse to repeat my unserious question from several years ago: The overseas Chinese are sometimes called "The Jews of the Orient." But what is the common bond between Jews and Koreans?

The answer is:

A poor joke, but mine own.


Jewish Attitudes Toward Intermarriage With Blacks:

Atlantic blogger Ta-Nehisi Coates has two interesting posts discussing data on Jewish attitudes towards intermarriage with blacks (see here and here). He points to General Social Survey data indicating that 38% of Jews would "oppose" or "strongly oppose" a close relative marrying a black person. Coates worries that this data is an indication worsening relations between the two groups.

Opposition to interracial marriage is often an indicator of racism. In this case, however, I think it mostly reflects the more general opposition of many Jews to any intermarriage with gentiles. The 38% of Jews who say they would oppose a close relative's decision to marry a black is similar to the 39% who, in a 2000 American Jewish Committee survey (question 42), said they agree with the statement that "it would pain me if my child married a gentile." It is true, of course, that there are black Jews, including a large Ethiopian Jewish population in Israel. In the US, however, the black percentage of the Jewish population is negligible. So opposition to intermarriage with blacks may simply be based on a shorthand assumption by Jewish survey respondents that virtually all blacks are gentiles. Further evidence supporting this proposition is the fact that the same GSS survey shows that 30% of Jews "oppose" or "strongly oppose" intermarriage with Hispanics, and 29% with Asians. Relations between Jews and Asian-Americans are quite good.

Coates compares the 22% of Jews who say they would favor or strongly favor a relative's intermarriage with blacks to the 72% who similar favor such intermarriage with generic "whites." However, Jewish survey respondents most likely view the category of "white" as including Jews, while seeing the category of "black" as one that is almost exclusively gentile. They could not very well oppose marriage with "whites" without also opposing marriage with Jews (the overwhelming majority of whom - in the US - are themselves "white," as most Americans use the term).

Part of the problem here is that Jews are both an ethnic group and a religious group; these two facets of Jewish identity are distinct, but often overlapping. Those Jews who oppose intermarriage tend to be among the most religious, and therefore the most committed to marrying someone of the same faith. For example, an analysis of the 2000 AJC survey showed that 64% of Orthodox Jews said they "strongly disapprove" of intermarriage with gentiles, compared with much smaller percentages of Reform and Conservative Jews. Polls that measure Jewish attitudes towards interracial marriage are to a large extent actually measuring attitudes toward interfaith marriage.

To avoid misunderstanding, I should note that I have little doubt that some Jews oppose intermarriage with blacks out of racism. But the true number is likely to be far smaller than 38%. I suppose I should also mention that I am an ethnic Jew engaged to a gentile, and that I have at various times in the past dated non-Jews who are also non-white. However, my case is just one of many examples of the point I made in the post. Although I am ethnically Jewish, I am not religious, and my engagement will not actually lead to an interfaith marriage because our attitudes towards religion are actually very similar despite the ethnic difference. Intergroup marriages that are also interfaith marriages tend to be more difficult and attract greater opposition.

NOTE: I use the word "black" here in preference to "African-American" because that is the term used in the GSS poll cited by Coates. I do not intend by this to take a position on the longstanding debate over which is the more appropriate term to use.

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  1. General White Attitudes Towards Intermarriage with Blacks:
  2. More on Black-Jewish Marriage:
  3. Jewish Attitudes Toward Intermarriage With Blacks:

Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:

The story is at, and it begins:

Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.

Now it might have been more informative to say that she was one of the three judges on the panel; but let's set that aside, and focus instead on the following:

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

“There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right — and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local — the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

I don't think that's quite fair. The "and therefore" phrase sounds pretty clearly like part of the assertion about what "the Heller decision held." But that's not what Heller held at all: Heller specifically said that it was holding nothing about the application of the Second Amendment (via the Fourteenth Amendment) to state and local governments. (Footnote 23 of Heller: "With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case ....") Let's go on:

“And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.”

In its 2008 case, the Supreme Court’s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

“Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,” the court ruled. “This does not refute the individual-rights interpretation of the Amendment.”

But aggain that's not right: Heller explicitly said (in the same footnote 23 I mentioned above) that "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Presser, in the Court's view, did have some bearing on something beyond a state's ability to outlaw private militia groups — in fact, it had bearing on the very question of whether the right to bear arms applied to the states. Moving on:

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

Actually, the Supreme Court has expressly held that the Seventh Amendment right to civil jury trial doesn't apply to the states, and that neither does the Grand Jury Clause of the Fifth Amendment. Unless I'm mistaken, the Excessive Bail and Excessive Fines Clauses of the Eighth Amendment haven't been incorporated, either, though their not being incorporated isn't as well-settled as it is for the Seventh Amendment or the Grand Jury Clause. Moving on again:

The Fourteenth Amendment reads, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

Here the story omits precisely that constitutional clause (the Due Process Clause) that the Court has indeed used to incorporate most of the Bill of Rights against the states. Moving on again:

Sotomayor’s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

Surely the Ninth Circuit is not reliably liberal; it has plenty of conservative judges, who get their way often enough. (The CNSNews story came out before the conservative panel on the Seventh Circuit ruled against incorporation.)

One can certainly anticipate that Judge Sotomayor is likely to be no friend of the individual right to bear arms, as applied to the federal government or to state and local governments; that seems likely given the political wing from which she comes. (This isn't certain, as liberal Judge Pregerson's and conservative Judge Posner's views make clear, but it's the likely bet.) One can certainly criticize the Maloney opinion, as well as the Seventh Circuit opinion, which I in some measure criticized earlier today. And in particular one can certainly argue that the incorporation of the Second Amendment via the Due Process Clause isn't foreclosed to lower courts, because past Supreme Court decisions rejecting incorporation focused on the Privileges or Immunities Clause.

But that's a pretty subtle argument, and if made would show at most that the Maloney opinion was pretty subtly wrong. The CNSNews story avoids the subtlety, and seems to assert that the Maloney opinion was patently and blatantly wrong. But in doing so, it seems to me, the story itself errs, several times and in pretty big ways.

Related Posts (on one page):

  1. Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:
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Are All Computer Crimes Now Federal Computer Crimes? A Review of Recent Legislative Changes: One of the remarkable developments in federal computer crime law in the last few years is Congress's elimination of the federal jurisdictional hooks that Congress has traditionally required for crimes to be a matter of federal rather than merely state or local concern. These important changes have gone almost entirely unnoticed, but I was really struck by them in the course of putting together the 2nd edition of my computer crime law casebook. I think readers interested in federalism, as well as readers interested in criminal law generally, might want to know the details.

  First, some background. As recently as 2007, federal computer crime prosecutions generally required a showing of an interstate communication involved in the crime, or at least use of a computer used in interstate communications. The exact meaning of the statutory jurisdictional requirements were often somewhat unclear, but the idea was conceptually very important: Not all computer crimes are automatically federal computer crimes. If a computer crime is purely an intrastate matter, it's not a federal question. Some hook to interstate commerce, no matter how small, must be shown.

  In the context of the federal child pornography laws, the statutory hook was usually that the images of child pornography were distributed or had at some point been distributed "in interstate or foreign commerce." That means that for the feds to get involved, the images had to have actually crossed state lines. In the context of the federal unauthorized access law, Section 1030, the requirement was that the computer be "used in interstate commerce," and in some cases that the information obtained by the unauthorized access cross state lines. The requirement that the computer be "used in interstate commerce" was never exactly clear -- used how and when? -- but the basic idea was that the computer had to be a networked computer or some computer that could have some connection to data crossing state lines.

  Enter Congress, acting, as always, in its infinite wisdom. In the last two years, Congress has essentially eliminated the jurisdictional hurdles in these important computer crime statutes. It has done so by adding language to both the child pornography and unauthorized access laws that expand the scope of the statute to computers and data merely "affecting" interstate commerce, not actually "in" interstate commerce. In 2007, the Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, replaced the jurisdictional requirement “in interstate or foreign commerce” with the new requirement “using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce.” In 2008, Section 207 of the Former Vice President Protection Act, Pub.L. 110-326, expanded the definition of protected computer regulated by the statute to a computer that is "used in or affecting interstate or foreign commerce or communication" (new language in italics), and removed the requirement that information obtained had to be information that crossed state lines.

  The switch from prohibiting conduct "in interstate commerce" to regulating conduct "affecting interstate commerce" is easy to overlook, but it turns out to be a critical change. When Congress uses the phrase “affecting interstate commerce,” that is generally understood to express Congress’s intent to regulate as far as the Commerce Clause will allow. See Russell v. United States, 471 U.S. 858, 849 (1985) (noting that prohibition regulating conduct “affecting interstate or foreign commerce” expresses “an intent by Congress to exercise its full power under the Commerce Clause”); Scarborough v. United States, 431 U.S. 563, 571 (1977) (“Congress is aware of the distinction between legislation limited to activities ‘in commerce’ and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.”). When Congress uses the jurisdictional hook of “affecting interstate commerce,” or its close cousin “affecting interstate or foreign commerce,” then the scope of the jurisdictional hook is generally understood to be defined by Commerce Clause jurisprudence.

  But here's the rub. Under Gonzales v. Raich, 545 U.S. 1 (2005), it seems awfully difficult to find any computer or any type of data that is actually beyond the scope of the federal commerce power. If you can aggregate the effect of all computers and all data, you're going to identify a rational basis for identifying a substantial effect on interstate commerce. Maybe I'm just too much of a Commerce Clause pessimist -- and if so, please let me know in the comment thread -- but it seems to me that under Raich, if it's a computer, it's going to be a computer that Congress can regulate. See, e.g., United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).

  The end result: In the last two years, Congress has essentially gutted the idea of computer crimes that are beyond the reach of the federal government. If a computer is involved -- any computer -- it's very likely to be a federal issue. The federal government can always decline to prosecute a case, and it can consider the fact that it's just a local crime in the course of making that call. But that's a matter of discretion, not law. For those of us who care about federalism, it's a very sad state of affairs.

  An interesting question is, how did this happen without anyone noticing? I'm not entirely sure, but here are two possibilities. First, the press isn't too likely to pick up on a subtle change like this. In a bill, the language is easy to overlook: it will be something like, "insert 'or affecting' after the term 'used in'." You would need to be pretty sharp to see the issue. Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law. These sorts of changes are generally framed as efforts to help the feds catch the bad guys by getting rid of annoying technicalities. Framed in that way, the legislation is likely to have broad popular support.

  Finally, I'm more than a little annoyed with myself for not seeing this earlier, while the legislation was pending, and when there was at least a chance (albeit extremely remote) that blogospheric objections could make a difference. I didn't really sit down to look at these changes until I was putting together the jurisdictional chapter of the 2nd edition of my casebook in the past few weeks. When I looked closely at the new legislation, I was very surprised by the textually subtle but (to my mind) far-reaching changes. I'll try to watch these issues more closely in the future, but that's easier said than done.

California Court of Appeal Upholds Ban on .50-Caliber Rifles Against Second Amendment Challenge:

The case is People v. James, just decided today. Here's the core of the analysis:

[As Heller holds, “the right secured by the Second Amendment is not ... a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. It protects the right to possess a handgun in one’s home because handguns are a “class of ‘arms’ that is overwhelmingly chosen by American society” for the lawful purpose of self-defense.

As the court’s discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle. Likewise, it does not protect the right to possess assault weapons or .50 caliber BMG rifles. As we have already indicated, in enacting the Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004, the Legislature was specifically concerned with the unusual and dangerous nature of these weapons. An assault weapon “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” (§ 12275.5, subd. (a).) The .50 caliber BMG rifle has the capacity to destroy or seriously damage “vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure.” (§ 12275.5, subd. (b).) These are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war.

I can't speak to the wisdom of a .50-caliber ban, but this seems to be a sensible interpretation of Heller's test for what "arms" are protected. Moreover, as I argue in my forthcoming Implementing the Right to Keep and Bear Arms in Self-Defense article, this is also consistent with a sensible interpretation of the right to keep and bear arms in self-defense. In my article, I argue that Heller's "typically possessed by law-abiding citizens for lawful purposes" test is flawed. But, among other things, I argue that the right to bear arms for self-defense shouldn't be seen as infringed by restrictions that don't materially interfere with the right to self-defense; and a ban on .50-caliber rifles doesn't materially interfere with self-defense (see PDF pages 12-19 and 48, as well as PDF pages 37-42 for the discussion of interpreting the scope of "arms" post-Heller).

This doesn't speak, of course, to the right to keep and bear arms for other reasons, such as deterrence of government tyranny and the like. But I leave that questions to others (much as the Court did in Heller); writing 100+ pages on the right to bear arms in self-defense is enough for me.


Tuesday, June 2, 2009

Podcast on Sotomayor and Property Rights:

The Manhattan Institute recently posted a podcast I did on Judge Sotomayor's important property rights decisions with Jim Copland, my law school classmate and director of the Institute's Center for Legal Policy.

Jim had a good related column on Sotomayor and the limits of empathy as a guide to judicial decisionmaking in yesterday's National Law Journal.


Is John Deutch the Right Person to Comment

on screw-ups by the US government mishandling secret material and posting information it shouldn't be posting online?

I can't possibly be the only person who finds it weird that the New York Times's story about the mistake the US government made in posting a confidential report on nukes in the US quotes former CIA director John Deutch to the effect that "screwups happen" with confidential information? Yet makes no mention at all of Deutch's own phenomenol screw-ups in keeping CIA files on an unprotected computer at his home, among numerous other security breaches -- breaches noteworthy mostly for the attitude of genial contempt with which Deutch held the secrets of his own agency? Says the Times:

“These screw-ups happen,” said John M. Deutch, a former director of central intelligence and deputy secretary of defense who is now a professor at the Massachusetts Institute of Technology. “It’s going further than I would have gone but doesn’t look like a serious breach.”

Here is the CIA Inspector General's report from 1998.

"Going further than I would have gone"? I think I will chalk this up to a sublimely dry sense of humor on the part of some editor at the NYT and leave it at that. One can only admire the supreme editorial self-confidence that allows a newspaper to deliver the punch-line entirely by indirection -- tacit, as it were.


Ex Parte Contacts About a Case Between a Judge and a Lawyer Via Facebook:

Just as improper as through any other means. No surprise to most of us, I'd expect, but it apparently was to the judge.

Thanks to Victor Steinbok and Legal Blog Watch for the pointer.


An Unpersuasive Defense of Judge Sotomayor's Ruling in the Didden Case:

Daniel Hemel has published in Forbes what I think is an unpersuasive defense of Judge Sonia Sotomayor's ruling in the Didden case, which I criticized here. In that case, a the Village of Port Chester condemned a property when the owners refused to pay $800,000 to the city's designated developer for the area. For reasons I explained in the earlier post, this case goes beyond even Kelo v. City of New London in licensing the condemnation of private property for the benefit of other private interests.

Hemel, however, has a different take on the facts that he claims justifies the decision:

According to Didden [one of the owners of the condemned property], G&S chief Gregg Wasser demanded an $800,000 payment or else he would have the village condemn the land and hand it to G&S. The village did indeed condemn the property the next day, although it paid Didden $975,000 in compensation. Didden sued the village in U.S. District Court, lost and appealed the case....

Wasser's $800,000 offer came at a November 2003 meeting with Didden and his business partner Domenick Bologna. The attendees do not agree on what happened at that session, but Wasser's account appears to be--at the very least--a plausible one. Wasser says he told Didden and Bologna that "it would be a waste of time for the lawyers to argue over who had 'better' rights to proceed with their project" and that the parties should settle the matter themselves.

According to court documents, Wasser estimated that the winner of the dispute would make a $2 million profit but that "whoever would be responsible for completing the project should be given some credit and was entitled to more than a 50-50 split." He said that whichever party proceeded with its drug store plans should pay the other $800,000, and he added that he was willing to take either end of the deal.

In retrospect, Wasser's offer appears to have been quite generous because he had strong reason to believe that he would win in court (as he ultimately did).

While Didden's backers say that Wasser's offer was extortion, it looks like it might have been an innocuous settlement proposal--standard fare for legal disputes. Unless Didden and Bologna could prove their side of this "he said, he said" spat (and they could not), Judge Sotomayor was correct to conclude that Wasser's "voluntary" attempt to settle the dispute "was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

There are two major problems with Hamel's defense of Sotomayor's ruling. First, the case was at the stage where the court was considering the Village's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim for which relief can be granted," which means that the Village was moving to dismiss the case without sending it to a jury because the owners didn't have a case even if their version of the facts was correct. When considering a 12(b)(6) motion, federal courts are required to assume that the plaintiffs' version of the facts is correct unless it can be "proven beyond doubt" that it isn't. If the suit really did hinge on a "he said, he said" dispute as Hemel suggests, the panel should have sent the disputed factual issue to the jury for adjudication. One of the most troubling aspects of the appellate panel's ruling is that they apparently concluded that Didden and Bologna had no case even under the assumption that they were telling the truth.

Second, Wasser's proposal was extortionate even if he was telling the truth. If Wasser's version of events is correct, he in effect gave Didden and Bologna two options: pay him $800,000 or 50% of the proceeds of their project for the right to proceed with the construction of a CVS on their land or transfer the land to him in exchange for an $800,000 payment from Wasser. Hamel claims that the inclusion of this second option makes the offer nonextortionate and even "generous." It was no such thing. As Hamel himself notes, the land was worth at least $975,000 (the amount the city paid Didden and Bologna as compensation for the taking). Thus, Hamel's alternative offer was an offer to pay the owners $175,000 less than they could get even in an eminent domain proceeding (which often end up undercompensating owners).

If Wasser's account is correct, he simply made two different extortionate offers, using the threat of eminent domain as leverage; his "generosity" consisted of letting the victims choose between the two unsavory options. One can characterize this is as a "settlement proposal" which is "standard fare for legal disputes." But there would have been no "legal dispute" in the first place if not for Wasser's threat to have the property condemned unless his demands were met.

If a Mafia don comes to you and says that he will break your legs unless you either 1) pay him $800,000, or 2) sell him your land at a price well below market value, that would surely be extortion. Wasser's "generous" offer was exactly the same, except that his leverage was based on the threat of condemnation rather than breaking the owner's legs. If this is not extortion using the threat of eminent domain as leverage, it's hard to see what would be.

In sum, Hamels' analysis fails to justify Judge Sotomayor's extremely dubious decision in Didden. If anything, it highlights her failure to properly apply the relevant legal standard in this important case.

UPDATE: It is worth noting that neither the district court decision (which Sotomayor's Second Circuit panel affirmed without any changes), nor the appellate opinion itself make any mention of the additional offer by Wasser that Hamel stresses in his op ed. That suggests that neither considered it relevant to the outcome of the summary judgment motion or (less likely) that they thought that Wasser's version of events wasn't credible enough to warrant consideration. Both opinions can be found in the appendices to the property owners' unsuccessful cert petition to the US Supreme Court.

UPDATE #2: I have changed around some of the wording of the original post in order to make a couple points clearer and make a few phrases flow better. I have not changed any of my substantive points, so I won't catalogue these stylistic changes in detail.

UPDATE #3: As commenters point out, the plaintiffs' case was actually dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable legal claim, rather than an ordinary summary judgment motion. I was remiss in not noting this in the original post. However, this fact actually weakens Hemel's argument further, since under Rule 12(b)(6), a court must assume - for purposes of ruling on the motion - that the plaintiff's version of the facts is true unless it can be proven false beyond doubt. I have amended the original post to reflect this fact.

UPDATE #4: In an e-mail to me Daniel Hemel cites court documents indicating that Wasser's alternate offer to Didden and Bologna was to by the land for $800,000 plus "fair market value" (this point was not noted in Hemel's original op ed). I thank Mr. Hemel for the clarification. Even this offer, however, would still be extortionate and far from "generous." Assuming that the "fair market" value noted in the offer was comparable to the $975,000 eventually paid in eminent domain compensation by the government, Didden and Bologna would have ultimately received $1.775 million if they had accepted the proposal. However, they would have lost some $2.975 million in exchange: the fair market value plus the $2 million Wasser estimated as the expected profits from the CVS Didden and Bologna had planned to establish on the site. Thus, Wasser's most "generous" offer was in effect a proposal to take $1.2 million from the owners, using the threat of eminent domain as leverage. This is even less "generous" than his alternative demand for a straight-up payment of $800,000 in exchange for being allowed to keep the land and proceed with the CVS, which everyone recognizes would be extortionate if proposed separately.


More from Richard Epstein on the Sotomayor Nomination,

in his Forbes column -- this time criticizing the conservative judicial minimalist case against her:

Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court's rendering of the "public use" language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo's land literally for no reason at all. If that's judicial activism, then words have lost all meaning.

These observations have clear implications for the ongoing debate over the Sotomayor nomination. However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.


Abortion: Murder or Tragedy? Are Those the Only Options?

William Saletan (Slate) has an interesting and thought-provoking article on the murder of abortion provider George Tiller; worth reading, it seems to me, whether one is pro-life or pro-choice. I should say, though, that the argument in the closing paragraph is too glib:

The reason ... pro-life groups have held their fire [in arguing for violent defense of fetuses], both rhetorically and literally, is that they don't really equate fetuses with old or disabled people. They oppose abortion, as most of us do. But they don't treat abortionists the way they'd treat mass murderers of the old or disabled. And this self-restraint can't simply be chalked up to nonviolence or respect for the law. Look up the bills these organizations have written, pushed, or passed to restrict abortions. I challenge you to find a single bill that treats a woman who procures an abortion as a murderer. They don't even propose that she go to jail....

If you don't accept what [Tiller's murderer] did, then maybe it's time to ask yourself what you really believe. Is abortion murder? Or is it something less, a tragedy that would be better avoided? Most of us think it's the latter.

It seems to me that there's a third option that the piece deliberately omits — that abortions, whether all abortions, late-term abortions, or some other subset of abortions — are not quite murder but should still be forcibly prevented. I take it that is the view of many generally pro-choice people about late-term abortions. There is very broad support for criminalizing such abortions but not, I think, for treating them as murder. I think that the article is right in saying that even most pro-life people don't really view abortion as morally tantamount to murder; but that doesn't mean that it has to be just a "tragedy."

One can debate the logical basis for this distinction, just as one can debate the logical basis for any lines one draws in the abortion field. Having three options (murder / crime short of murder / not a crime) rather than two (murder / not a crime) requires some slightly different justification, but not, I think, of a character that's radically different than the justification required for the two-option solutions.


FCC v. Fox Television Stations, Part V: A digression on what it takes to change a policy.

I haven't had time to post lately, but now let me return to my series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last month, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin's monologue if you haven't done so already!)

In past posts, we've seen the evolution of the FCC's policy on regulating expletives. Recall that the FCC's statute, the Communications Act of 1934, has two sections that are somewhat in tension. First, we have the no-censorship provision, now codified at 47 U.S.C. § 326, which says:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

Then, we have the no-indecency provision, now codified at 18 U.S.C. § 1464:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

Originally, the FCC announced a policy where, say, the George Carlin monologue was considered "indecent" and therefore sanctionable; this policy was upheld in FCC v. Pacifica Foundation in 1978 — that story is told in this post. But over the years, they took the policy that "fleeting expletives" — if an expletive occurred in an isolated context, or by accident — were either not indecent or, if indecent, didn't merit any enforcement action.

The FCC reversed its policy over the last 5 years, first announcing its change in a case involving Bono and then applying its new policy to dozens of complaints it had in its backlog. All this was challenged — and that challenge resulted in the recent FCC v. Fox Television Stations case, which upheld the FCC's change of course (though leaving the First Amendment arguments for another day).

We'll discuss that case in a later post. But first, a bit of background. What does it take for an agency to legitimately change course? The classic case on this is Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance (1983), called State Farm for short. That's what the rest of this post is about.


Can Lethal Self-Defense, Even Against Threats of Death, Serious Bodily Injury, Rape, and Kidnapping, Be Made a Crime?

The Seventh Circuit's Second Amendment non-incorporation decision so suggests:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as far-fetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868.

Note that the court's argument isn't simply that lethal self-defense could be constitutionally limited to situations where it's genuinely necessary to protect against (say) death, serious injury, rape, or kidnapping. Rather, the argument must be that lethal self-defense could be constitutionally barred altogether. Otherwise the court's argument that "That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens" wouldn't work: The argument rests on the assumption that guns would be unusable to "law-abiding citizens" because "[lethal] self-defense would itself be a crime."

Likewise, the argument is not only that certain tools for lethal self-defense could be barred. That's the conclusion that the panel is trying to reach by arguing (I repeat) that lethal self-defense could itself be made a crime. (I read "self-defense" as meaning "lethal self-defense" in context.)

Now not all bad laws, even evil laws, are unconstitutional laws. And the lower court cases (all of them pre-Heller, except Brett, N. v. Community Unit School Dist. No. 303, 2009 WL 424546 (N.D. Ill. 2009)) are indeed split on whether there is a constitutional right to self-defense. But it seems to me that the case for such a right — including a right of lethal self-defense when necessary to prevent death, serious bodily injury, rape, and kidnapping — is very strong, even under the narrowest accepted test for recognizing constitutional rights (the Glucksberg test, from the decision that rejected a claimed right to assisted suicide). For a past on-blog debate on the subject, see this post chain.


Seventh Circuit Rules That, Under Supreme Court Precedent, the Second Amendment Is Not Incorporated Against the States:

The case is NRA v. City of Chicago, the challenge to the Chicago handgun ban. The core argument:

Cruikshank, Presser, and Miller [v. Texas] [late 1800s Supreme Court precedents -EV] rejected arguments [for applying the Second Amendment to the states -EV] that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states.... [P]laintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils.... Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) [that's the nunchaku case in which Judge Sotomayor was on the panel -EV]. We agree with Maloney ....

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Cruikshank, Presser, and Miller have “direct application in [this] case”. Plaintiffs say that a decision of the Supreme Court has “direct application” only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank’s holding] that the Second Amendment applies only to the Federal Government.” The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case.” That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision. State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished Albrecht’s intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht’s rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs’ lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht’s shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, “for it is this Court’s prerogative alone to overrule one of its precedents.”

I don't think this reasoning (from Judge Frank Easterbrook, joined by Judge Richard Posner and Judge William Bauer) does justice to the plaintiffs' arguments. "Selective incorporation" isn't just a different "line of argument" for incorporation -- it is an argument under a different constitutional clause, the Due Process Clause of the Fourteenth Amendment (something the opinion doesn't mention). The late 1800s cases rejected direct application of the Second Amendment to the states, and incorporation via the Privileges and Immunities Clause of the Fourteenth Amendment. They didn't discuss in any detail whether state restrictions on the right to bear arms were potentially unconstitutional under the Second Amendment as incorporated via the Due Process Clause -- the very clause through which most of the Bill of Rights was later incorporated.

And I know of no precedents holding that lower courts must reject arguments against a statute under one constitutional clause just because similar statutes have been upheld against challenges under a different constitutional clause. Such arguments under different constitutional clauses don't call on the lower court "to overrule one of [the Court's] precedents," because the precedent deals only with an earlier clause. For instance, when the Court held that the mandatory federal Sentencing Guidelines generally violate the Jury Trial Clause, it wasn't overruling its past precedents that upheld the Guidelines against separation of powers challenge; it was considering a different constitutional challenge.

Likewise, when the Court held that closing a criminal trial, even with the defendant's permission, presumptively violated the First Amendment, it wasn't overruling the then-one-year-old precedent that upheld such a closure against a Public Trial Clause challenge. And when the Court held that preferences in city-funded construction contracts for city residents violated the Privileges and Immunities Clause of Article IV, it wasn't overruling the then-one-year-old precedent that upheld such preferences under a Commerce Clause challenge. And lower courts would similarly not have been barred from adopting such arguments, because they wouldn't have been trying to "overrule" a past precedent. See, e.g., Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality opinion) ("[C]ases cannot be read as foreclosing an argument that they never dealt with.") (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)); see also Miller v. California Pac. Med. Ctr., 991 F.2d 536, 541 (9th Cir. 1993) ("It is a venerable principle that a court isn't bound by a prior decision that failed to consider an argument or issue the later court finds persuasive.").

Moreover, the Court itself made clear, in roughly the era in which the cited cases were decided, that the two amendments might have separate coverage: "[Defendants] appeal to another clause of the 14th Amendment, and insist that the self-incrimination which they allege the instruction to the jury compelled was a denial of due process of law. This contention requires separate consideration, for it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law." Twining v. New Jersey, 211 U.S. 78, 99 (1908) (since reversed as to the substantive question whether the privilege against self-incrimination should indeed be applicable to the states via the Due Process Clause).

Nor does the quotation from footnote 23 of Heller fully dispose of the plaintiffs' arguments. That "Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government" doesn't speak to whether the Due Process Clause applies the right to bear arms to state laws, under

This having been said, figuring out the exact scope of the Court's precedents on this matter isn't easy. Heller did start the quoted footnote with the phrase, "With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." This could reasonably be read as saying that Cruikshank was indeed dispositive of the incorporation question (though that it might no longer be valid, which is to say might merit overruling). It also treats the Fourteenth Amendment as a unitary basis for incorporation, rather than treating the two clauses separately. Other Court decisions have likewise spoken in broad terms, see, e.g., Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) ("By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment," citing among other things Cruikshank as to the "right to keep and bear arms"), overruled as to the substantive question of incorporation of the privilege against incrimination, Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). (Presser also said in passing that, "The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty, or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion," but not having the briefs in front of me it's hard to tell whether this was a rejection of the incorporation-via-due-process argument or of a separate procedural claim.)

So it's not implausible, I think, to treat the Court's precedents as stare decisis on the question of incorporation via the Fourteenth Amendment generally, rather than solely of incorporation via the Privileges or Immunities Clause (though I'd probably be inclined to the other position). But it seems to me that the case is not nearly as clear as the Seventh Circuit's analysis suggests, and that the opinion's not discussing the difference between the two Clauses of the Fourteenth Amendment is a significant weakness.


What New Bond Covenants Would You Demand

as protection against political risk following the government's pressures on senior and secured creditors of Chrysler?

In my development finance work in the developing world, I have undertaken a lot of negotiations with businesses (mostly media companies) in places ranging from South Africa to Guatemala to Serbia looking to borrow money. The nonprofit private equity fund I work with has standard loan documents, of course, and over the years has looked to tailor them to fit risky investment in these environments with less than perfect adherence to the rule of (contract) law.

As I watch the Detroit restructurings unfold, particularly the strong-arming of senior and secured creditors, I wonder what new covenants creditors might want to put into new bond issuances by US businesses that might eventually become entangled with government. I've been reflecting on this looking back over the standard documents that I have used over the past twenty years. Interestingly, the contract forms I've used do not have very many special political risk terms.

Why not? Because the general assumption is that no political risk covenant can really protect you in a place where contracts are not enforced — political risk of that kind involves yanking the floor out from under the investor altogether. If a contract term that provides for secured creditor status will not be enforced, why think that a covenant requiring repayment in case of political risk such as expropriation will be enforced either? The nature of political risk is that it is a risk running to the very rules of the game.

Of course that is not completely true. There are political risks and there are political risks, if you are investing in the developing world or, alas, today the United States. The United States seems, in these contract matters, not to resemble the rule of law in Angola, sure — but it is distinctly starting to resemble, ever so little-bit-by-little-bit, the rule of law in China. There is a certain amount of neutral contract enforcement, but also a hefty amount of political thumb on the scale, and many uncertainties attached — and without getting hysterical about it, the American trend line is going that direction. It might be most useful to look at Western contracts with Chinese companies to get good ideas on "mixed" cases of this 'sort-of-rule-of-law, sort-of-not', because that seems to be the drift of Obama administration industrial policy.

So here's my question. What covenants would you put into a new bond issuance by an American company — say a non-Detroit car manufacturer — or an insurance company or a health care provide? Some company in which you thought the chances of US government behavior of the kind on display in Chrysler were not negligible or hypothetical over the next decade. Assume you are looking for senior creditor status; not so worried about special issues of secured versus senior status - focus on political risks common to all senior creditors in this new (third) world.

Plenty of commentators have said that creditors will, over time, demand higher interest rates to compensate them for higher risk from political re-ordering of creditor priority. True. Less discussed (as far as I know but I welcome links to good discussions) is that creditors and borrowers will presumably also look to reduce that interest rate hike by trying to reduce the uncertainties of political risk, through bond covenants that would allocate the risks today of future political contingencies. If you can't trust the rule of contract law at all, then those efforts are for naught. But if what happens if you think you can't trust creditor priority in bankruptcy — but other kinds of contract terms might be enforced? Should you negotiate for those covenants, or is this like being a little bit pregnant?

Here's an example. Something I have sometimes negotiated into developing world debt covenants is a political risk form of a poison put. It is merely a standard poison put, used to address changes of corporate control, adapted to political risk. Nothing special. It simply says that if certain political contingencies occur, such as a government (or union) move to take direct or indirect control of the borrower-corporation, the creditor bondholders can at their option put the bonds back to the corporation and require full repayment of principal, and whatever is negotiated for interest and penalties. It is a response to this particular political risk, not of full-blown rule of law breakdown — but instead of what might be under local law a legal move by the government. It allocates the risk and presumably gives the borrower-corporation some incentive not to seek government involvement.

I haven't inserted it often, and have never even thought about trying to enforce it (Montenegro or Macedonia? Zimbabwe? Indonesia?). Is this kind of political risk poison put worth using in future American corporate bonds? Or is it 'a little bit pregnant' and no matter what you wrote in the poison put, it would be subject to the same political re-writing? After all, though I haven't looked, isn't it likely that Detroit's existing bonds have change of control provisions anyway? Leaving aside its practical effect (or not), what about the effect on the interest rate? Would this be likely to reduce the uncertainties and so reduce the interest rate for risk? Or is it a mostly futile exercise?

Finally, let me ask if there are any other covenants you would think to negotiate into future bond issuances to protect against political risks. (And I have to say, the idea that I would ever be publicly airing such a question about leading US corporations and the bond market, looking to my experiences in the developing world for counsel and advice is, well, shocking.)

(Update: A couple of the comments make the very fair point that the assumption of the post is that the government intervention makes the bondholders worse off. The commenters are correct - that is the post's assumption, and it might well be contested. For purposes of this post, however, let me make that assumption, because what I propose to get at is whether there is a reason to seek covenants in cases where the bonholders will indeed be made worse off and, assuming such covenants could be drafted and enforced, what they might be. I grant that I am assuming that the current Detroit interventions make bondholders worse off than otherwise.)

(Further update — a couple of other quick thoughts. Thanks for these interesting comments. On the question of a party getting third party insurance, eg through a swap or other derivative, it might solve that party's problem, but ultimately, overall, new political risk (using my assumptions above) have been introduced into the system as a whole and risk shifting among parties doesn't make that go away (although it might allocate the risks more efficiently to some extent but, to be honest these days, let's not 'bet' on it (a joke sufficiently obscure but funny to qualify for XKCD status??)).

With reference to the question of what's the problem with government intervention if it makes the company stronger - the question is not whether it makes the company stronger, but the next question of whether it makes the bondholders stronger. It's a little like the classic question of what does 'return' mean in the triad of risk, return, and control: there might indeed be a return to the enterprise, but unfortunately you don't share in it. Here, the restructuring (on my assumptions, granted) might leave the company better off, but does so in a way to leave the UAW better off and the bondholders worse off.

With respect to the suggestion that the bondholders might simply insert covenants allowing the bondholders to bail for any reason any time they like ... it's possible that raising the possibility of political risk that a rational bondholder might want to protect against, if possible, is like simply allowing the bondholder the option bail on whatever grounds it likes. I suppose. But that does not seem like the best way to understand the problem. There seems to be a political risk problem that didn't seem to be there before. Asking whether there are specific ways in which that can be addressed in advance - if it can - is not asking to have a free-exit card. Poison puts have existed for decades with specific rights, but also negotiated limits, attached.

Finally - because I have to go to the gym this summer and improve my chances of living through middle age - I want to raise a question about how best to analyze the point in the comments that the only real protection is to charge a higher interest rate. Why? Because if you can't trust enforcement in the future, you should instead collect up front. Of course, carried to its logical extreme, you would protect against everything by lending the money now and collecting a nanosecond later. The comment was not proposing that, but it was proposing collecting higher interest payments in order to have more money upfront to compensate for future risks. How should we analyze that from a financial instruments perspective? Form of an option, I suppose, in which the other party - the government, say - has the option to alter the payback terms in various ways, and so is the holder, while the lender is the writer who is collecting a premium in the form, not precisely of interest payments as such, but rather the excess interest payment over what would have been charged absent the option held by the government. I suppose that is how you would price the additional interest stream, but I am ready to be corrected. Okay off to the gym - an option, I guess, running in favor of God? Or the other way around?)


Empathy for the Unseen:

John Hasnas had a very good op-ed in the WSJ a few days on empathy, the "seen" and the "unseen." Here's a taste:

Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that? . . .

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen." . . .

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge.


Where Cheney Is to Obama's Left:

From today's Washington Post:

Cheney, whose youngest daughter has a longtime lesbian partner, said at the National Press Club that "people ought to be free to enter into any kind of union they wish, any kind of arrangement they wish."

He added, however, that he does not support a federal role in the matter. "Historically, the way marriage has been regulated is at the state level," Cheney said. "It has always been a state issue, and I think that is the way it ought to be handled, on a state-by-state basis."

Cheney has long departed from conservative orthodoxy on the issue of same-sex marriage. He said during the 2000 presidential campaign that the matter should be left to the states, and he caused a small uproar during the 2004 race by appearing to distance himself from a proposed constitutional amendment to ban gay marriage, a measure that was strongly supported by his boss, President George W. Bush.

Cheney's position appears also to put him to the left of the current president on the issue. President Obama has said he supports civil unions, rather than marriage, for gay men and lesbians.


Why Obama Voted Against Roberts:

Today's WSJ reprints portions of then-Senator Obama's explanation for his vote against the confirmation of John Roberts to be Chief Justice.


Sotomayor vs. the Second Amendment, Part II:

As I detailed in a previous post, Judge Sotomayor co-authored two opinions which denied that the possession of a firearm is a fundamental right. The first case can defended as based on what was, at the time, still-valid dicta. The second case is indefensible.

The first case was United States v. Sanchez-Villar (2004). For the proposition that that there is no fundamental right to possess a gun, Judge Sotomayor and the other two judges quoted United States v. Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.

Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:

Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport "in commerce or affecting commerce ... any firearm." Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class.
The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.

It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court court judges who had "overread Miller" and criticized Justice Stevens for wanting to defer to "their erroneous reliance" on interpretations similar to the one proffered by the Second Circuit in Toner. The Heller decision stated that "Miller did not hold that and cannot possibly be read to have held" that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.

In 2009, Judge Sotomayor was part of a three-judge panel which decided a challenge to New York state's prohibition of nunchaku, Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the right to arms issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about the Fourteenth Amendment: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. (Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.)

The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test: 1. Does the legislative act interfere with a fundamental right or single out a suspect classification? 2. If not, is there a rational basis for the law?

The cigar aficionado Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that the right to arms is not a fundamental right.

The opinion in Maloney v. Cuomo is not a good example of intellectual rigor. When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.


Computer Crime Law Casebook, 2nd Edition: The second edition of my award-winning* Computer Crime Law casebook will be coming out this fall, and it will be available for use in the Spring 2010 semester. The book is keeping the same format and length, but it has many new cases and covers the statutory changes since the 1st edition came out in 2006.

  Parts of the book have been considerably rewritten in response to new developments. For example, the materials on applying the Fourth Amendment to computer networks are almost entirely new; I had to replace the "what will this look like when courts finally get there" approach of the 1st edition with a "here's what the courts have said so far" approach in the second. I think the only new section is a subchapter dedicated to government efforts to get around encryption: It covers both the Fourth Amendment and Fifth Amendment issues. I also plan to put together a teacher's manual, but at this point I haven't yet written it.

  If anyone is interested in using the book to teach from it, just let me know and I'd be happy to talk you through how I approach the course and what to cover. I should also add that a lot of people using the book are adjuncts who are practicing lawyers, many current or former computer crime prosecutors. You don't need to be a full-time law professor to teach from the book. Anyway, sorry about the advertisement; I just wanted to flag the new edition for those interested.

    * Ok, so the award was given by my mom: Best Computer Crime Law Casebook By My Son, 2006. But hey, I needed a hook.

Monday, June 1, 2009

Judge Sotomayor & Race Cases:

Judge Sotomayor's participation in Ricci v. DeStefano (the New Haven firefighters case), and her "wise Latina justice" speech have fueled speculation about her approach to cases involving race. To address such concerns, SCOTUSBlog's Tom Goldstein reviewed all of the cases involving race in which she participated on the Second Circuit. His conclusion:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. . . . Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

This review is worthwhile, and certainly shows Sotomayor has been a relatively mainstream judge on racial issues during her time on the Second Circuit. But does it show more than that? Goldstein's SCOTUSBlog colleague, David Stras, comments:

This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is “absurd to say that Judge Sotomayor allows race to infect her decisionmaking.” The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample. While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much. In this case, we know that when Judge Sotomayor was on a panel of the Second Circuit, the panel upheld a claim of discrimination about 10% of the time. (It would also be helpful to know how Tom defined a “race-related” case, which is certainly subject to reasonable disagreement.) To the average observer (including me), this statistic does not seem to be out of the mainstream, but the only way to know for sure is if we compare her dispositions to the disposition rates of other judges, both within and beyond her circuit. For instance, it is possible that claims of discrimination are upheld at a rate of only 5% by the average circuit judge in the federal judiciary, in which there could be an argument that Judge Sotomayor tends to uphold claims of discrimination, on average, twice as often as her colleagues. (By the way, I certainly do not expect Tom to conduct this type of inquiry as this is the type of paper that can take an academic a year or more to produce.) What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.

I agree with Stras' qualifications and critique — I raised similar concerns to Tom Goldstein directly. This is not to say there is anything problematic in her record in these cases, just that a descriptive review of the cases can only show so much. Furthermore, insofar as the review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture.

Another en banc race-related case omitted from Tom Goldstein's review is Brown v. City of Oneonta, in which Judge Sotomayor dissented from the denial of rehearing en banc. It's an interesting case, which I may blog on later. Ed Whelan has a comment on the case here.


Ken Anderson Signing In:

My thanks to the Senior Conspirator for the invitation to join the Merry Band - I have long been a fan and admirer of the Volokh Conspiracy and I am honored to take part.

Some of the band I have known - Eric Posner, Ilya Somin, several others, but I was delighted to meet Eugene and Orin for the first time at a lunch in DC two weeks ago. I'm sure many of you have had the pleasure of meeting someone in person for the first time whose work you have enjoyed on a blog, and are pleased to discover that they are as charming in person as on the screen. I look forward to meeting the other Conspirators in real life, as too many VC's readers. It is a genuine honor to join this group.

As Eugene said in his introduction, I also post over at the international law professor blog Opinio Juris, and I will continue to do so. But my interests run more broadly than international law - my day job is international business and finance professor, and in my pro bono and other work I do nonprofit law, international philanthropy, and development finance. So VC, being so broad church in its interests, is a great place for me. I also blog on quite specialized academic topics related to warfare, terrorism, and such things from a theoretical, political science, social science perspective at the Complex Terrain Lab (CTLab), but that is on quite specialized things.

I won't ordinarily be so biographical, but perhaps a little bit about me in an inaugural post might be helpful.


Event Planning Tips for Federalist Society Student Chapters

(though probably adaptable to many other groups):

  1. Debates seem to get more of a turnout than lectures.

  2. If you can't set up a head-to-head debate, for instance because local professors (see below) aren't confident that they'll entirely disagree with the visitor), set up a two-person panel, or a talk-plus-commentary.

  3. Events that involve a local professor — a debate, a panel, or even the professor's just introducing a guest speaker — will probably get more of a turnout, because it will bring in the professor's local fans.

  4. Publicize, publicize, publicize, using all the tools at your disposal — e-mail, flyers in mailboxes, postings on bulletin boards, postings on class chalkboards, if your school allows that, and whatever else you can think of.

  5. For topics, the usual sexy ones are good: affirmative action, gun control, abortion, church-state separation, campaign finance, and the like. Other topics can work as well, especially if you can find a well-known visitor who wants to talk about the things he likes. But generally speaking the old standards work well. Even if you feel that not a lot of views are going to be flipped on these topics, sometimes you can succeed just by moving people from unreflective support for the liberal conventional wisdom to a more agnostic position.

  6. If you want to bring in a relatively prominent speaker from out of town, offer to coordinate with other chapters in your city, so that the speaker can — if he wants to — give several talks on one trip. This may substantially increase the chances that the speaker will want to take the considerable time and effort that modern airplane travel requires.

  7. Provide lunch — the better, the better. [UPDATE: I originally forgot this one, even though it's in some ways the best way of boosting turnout; thanks to the commenters for reminding me.]

These are of course all guidelines, not hard-and-fast rules. For instance, I've generally preferred to talk about slippery slopes, never with a debater (it's not a subject that lends itself well to head-to-head debates) and often without even a local commentator, and that's generally worked out quite well. But I think that most of the time, those guidelines will prove helpful.


Talk in Philadelphia:

Tomorrow at 5:30pm I'll be speaking to the Philadelphia Lawyers Chapter of the Federalist Society on the topic "Is the Roberts Court Conservative? Do the Court's Opinions Support Its Critics?" I'll be talking about the current Court and, as one might expect, a little bit about the possible impact of Justice Souter's replacement. RSVP and other details here.

Interesting 1818 Blasphemy Case:

I haven't seen it published anywhere, or cited in any articles or books on blasphemy, so I thought I'd pass it along, since it seems to be one of the few available early decisions on blasphemy. I should note that I'm passing this along solely in case people are curious about it, and in case it helps people in their research -- I'm not trying to make any statement about what the law ought to be, or even about the original meaning of the First Amendment or related state constitutional provisions.

The report is from Law Intelligence, Franklin Gazette, p. 2, Nov. 17, 1818, but it's also reprinted in much the same form in a contemporaneous newspaper article that's available here:

Mr. Bache,

The following paragraph is extracted from the Democratic Press of Saturday last --

“At a meeting of the friends of ROBERT C. MURRAY, held at the Rialto Tavern, No. 130, South Sixth Street, November 13, it was resolved that this meeting highly disaprove of the prosecution of Robert C. Murray for the expression of opinions on the subject of RELIGION, which were the opinions of Franklin and Jefferson, two of the greatest and best men, that ever lived in any age or country -- and that we now adjourn to meet again at this place, on MONDAY EVENING NEXT, at 7 o’clock, and that all enemies of Religious Persecution be invited to attend at that meeting.

JOSEPH AILES, chairman.

John Syng, secretary.”

There is in our code, an unrepealed Act of Assembly, of the year 1700, which punishes with a fine of ten pounds, for the use of the poor, or an imprisonment at hard labour for three months, whomsoever “shall willfully, premeditatedly, and despitefully, blaspheme, or speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit or Scriptures of Truth.” 1 Smith’s State Laws, page 6.

Under this act, Robert C. Murray was indicted at the last Mayor’s Court, for Blasphemy. His counsel entered the plea of “Not Guilty” on his behalf; and the case was, in the ordinary way, submitted to a jury of his country.

The evidence for the prosecution was brief, distinct, and forcible. Two witnesses swore that they had heard the defendant, at various times and places, utter the following language -- “That Christ was a bastard -- his mother a w---- and the bible a pack of lies.”


"American History in Three Men":

Michael Lorton writes:

According to my research, the oldest living Justice right now is John Paul Stevens. He was born in 1920, and at the time, the oldest living Justice was, of course, Oliver Wendell Holmes, Jr., born in 1841 when the oldest living Justice was Gabriel Duvall. Duvall was born in 1752! He was [23] years old when the Declaration of Independence was signed.


Eminent Domain Battle over Flight 93 Memorial Continues:

CNN has an interesting article describing the ongoing battle over the federal government's plan to use eminent domain to acquire some 500 acres of private property for the construction of a memorial at the site where Flight 93 crashed on September 11, 2001.

I previously wrote about this controversy here and here. As I explained in those posts, I think that these takings are clearly constitutional, even under the relatively narrow interpretation of the Public Use Clause of the Fifth Amendment that I favor. However, I am somewhat skeptical that the government really needs to use 2200 acres of land, including 500 taken by eminent domain, to build an appropriate memorial to the fallen.


Ars Longa, Vita Brevis:

I had always assumed that this means something like "art can endure even after an artist's death," and others seem to take the same view. (I had considered and discarded "having a large arse is bad for your life expectancy.")

But my father reported to me that the original meaning of the quote -- apparently by Hippocrates, in Seneca's translation -- is something like "There's much to know, and little time to learn it," with "ars" meaning (more or less) skill. What's more, that appears to be at least a common modern meaning, rather than just a historical meaning long abandoned by modern users. And it's always dangerous to use phrases that have multiple meanings, unless the multiplicity of meaning is part of your goal.


Three Highest-Selling (Partly) Black Authors:

Which three highest-selling authors — counting both during their lives and after — were at least partly black? Naturally, the definitions, both of best-selling and partly black, are necessarily vague. But I'm looking for people at least some of whose relatively recent ancestors were of the racial groups that we generally call "black," and that were known by many others and by themselves to be at least partly black. (My sense is that this is the normal American usage of the term; whether it's a good definition or not, that's the one I'm using here.)

For best-selling, I've looked at all the people noted throughout this Wikipedia page, though I'd certainly accept rival claims. I've deliberated focused on best-selling status to try to keep things as objective as possible, though naturally one can point to authors who were great and even successful who don't make this list for a variety of reasons). My view is that two of the people I have in mind have legitimate and broadly acknowledged claims to literary greatness and not just popularity, but that's of course subjective, as is the question whether their greatness materially exceeds that of, say, Maya Angelou or Wole Soyinka or many other candidates.

UPDATE: I originally just asked for "best-selling," but I meant to ask for the three highest-selling -- I don't just want popular authors, but extraordinarily popular ones. I corrected the post accordingly.


How Rhode Island Mostly -- and Perhaps Inadvertently -- Decriminalized Much Off-Street Prostitution in the Late 1970s:

An interesting article from the Providence Journal. As a federal district court ruled in 1980, "[T]he amendments appear to have decriminalized the sexual act itself, even when undertaken for remuneration. Thus, it appears to the Court that § 11-34-5 now outlaws only certain preliminary or preparatory activities (securing, transporting, receiving into a house or conveyance, etc.), and then only when pecuniary gain is somehow involved.

Thanks to How Appealing for the pointer.


WaPo on Tom Goldstein and ScotusBlog: Howard Kurtz has the scoop here, via Dan Solove. My favorite excerpt:
White House officials had asked to consult Goldstein on the court vacancy, but by the time he returned from a weekend in Paris, Obama had made his choice. Determined not to miss the action, Goldstein canceled a meeting in Los Angeles with a top producer about a reality series based on his life, the rights to which were bought by Sony Pictures Television.


Bobbie v. Bies: Last year, a number of posts here noted the 6th Circuit's unusual decision in Bies v. Bagley, a 6th Circuit capital habeas case. The Sixth Circuit denied rehearing en banc,with the author of the original panel opinion stating that the original opinion was not only correct, but that it was "an easy case." Judge Sutton disagreed, authoring what I thought was a strong dissent from denial of rehearing en banc.. Today the Supreme Court reversed n a unanimous opinion authored by Justice Ginsburg, Bobbie v. Bies. Justice Ginsburg's decision is unusually brief for an RBG opinion, and the four-page analysis section cites Judge Sutton's dissent four times.

Broad domestic partnerships in Nevada:

The state legislature overrode the Governor's veto. The vote was 28-14 in the state assembly, and 14-7 in the state senate, exactly the amounts needed in each house.

The governor had argued that a 2002 state constitutional amendment banning gay marriage precluded the partnership bill. While I haven't seen the text of the Nevada bill, it apparently grants same-sex (and opposite-sex) couples substantially all of the rights and protections of marriage when they register as domestic partners. By my count, Nevada was one of nine states that amended its constitution to ban only same-sex "marriage" and not also "similar" unions. Three of those nine states (California, Oregon, and Nevada) now have broad domestic partnership laws.


The Economy is in Good Hands:

N.Y. Times:

It is not every 31-year-old who, in a first government job, finds himself dismantling General Motors and rewriting the rules of American capitalism.

But that, in short, is the job description for Brian Deese, a not-quite graduate of Yale Law School who had never set foot in an automotive assembly plant until he took on his nearly unseen role in remaking the American automotive industry.

Nor, for that matter, had he given much thought to what ailed an industry that had been in decline ever since he was born....

Mr. Deese’s role is unusual for someone who is neither a formally trained economist nor a business school graduate, and who never spent much time flipping through the endless studies about the future of the American and Japanese auto industries.

It's funny, but just the other day I was telling my wife that I hope the automobile industry's future [and, more broadly, the economy's] is in the hands of early 30-something political operatives with working on law degrees from Yale who have no formal background in business, economics, engineering, or marketing.


Prof. Ken Anderson Joining the Conspiracy:

I'm delighted to report that Prof. Ken Anderson of the American University Washington College of Law is joining our merry band.

Ken specializes in the law of international human rights, of war and armed conflict, of terrorism, of nonprofit and charitable organizations, of philanthropy, of development finance and microcredit, and of international business and finance. He is a research fellow at the Hoover Institution, and was a former general counsel to George Soros' Open Society Institute as well as director of the Human Rights Watch Arms Division; and he's coming to us from the Opinio Juris blog, where he will also continue blogging. For links to many of his articles, see his SSRN page author.


The 2009 Bradley Prizes: On Wednesday, at a ceremony at the Kennedy Center with George Will as Master of Ceremonies, the Federalist Society for Law and Public Policy will receive one of 5 annual Bradley Prizes for outstanding achievement. The award will be made to its founders and president, former Sen. Spence Abraham, Professor Steven Calabresi, Leonard Leo, former Rep. David McIntosh, Eugene Meyer, and Lee Lieberman Otis. The other 4 prizes will go to Sir Martin Gilbert, the official biographer of Winston Churchill, Arnold Harberger, Professor of Economics, UCLA, and Bill Kristol, Editor of The Weekly Standard. Each award carries a stipend of $250,000.

Today's Washington Times has a column by Herbert London describing the 6-year-old prize, which is given by The Lynde and Harry Bradley Foundation.
For decades, those who represent a defense of the command economy, who have attempted to redefine America's role in world affairs and are the avatars of nontraditional principles have legitimized their philosophical stance with awards for their version of excellence. For example, the Pulitzer Prize in journalism has become a self-congratulatory award for New York Times and Washington Post writers. The so-called "genius award" conferred by the MacArthur Foundation invariably favors scholars and artists on the ideological left.

Of course, there is little doubt that the nontraditionalists have come to dominate the culture. One might even argue that the counterculture of yesteryear now resides with conservatives.

Hence, it is not surprising - indeed, it is justifiable - that conservatives of a moderate bent would want to honor their confreres who embody the characteristics of tradition, patriotism and the free market. If the culture is a reflection of national sentiments, it seems to me illogical to leave out at least half of scholarly opinion.

Filling this cultural void is the estimable Bradley Foundation, which over the past six years has given out awards to remarkable recipients at a ceremony held at the Kennedy Center.
Another coveted award is the Milton Friedman Prize for Advancing Liberty, conveyed biannually semi-annually by the Cato Institute, which carries a stipend of $500,000.

Judge Sotomayor's 50 Most Important Opinions:

Over at The Right Coast, USD law prof. Tom Smith has this interesting list of Judge Sotomayor's 50 Most Important Opinions. As I understand it, the algorithm he uses to collect the most important opinions — called PreCYdent — determines which particular opinions have been most influential in the development of the law. Interestingly, the top three opinions on the list are all immigration opinions:

1. ZHANG v. GONZALES, 426 F.3d 540 (2d Cir. 2005)

2. LIN v. GONZALES, 445 F.3d 126 (2d Cir. 2006)

3. BRISSETT v. ASHCROFT, 363 F.3d 130 (2d Cir. 2004).

I think this suggests that court of appeals judges are likely to have the most influence in areas of high-volume appeals — like immigration appeals. Of course, if confirmed, Judge Sotomayor will have for more expansive opportunities to influence the development of the law!


Bob Barr Defends Troy Davis:

Former Republican Representative (and Libertarian presidential candidate) Bob Barr has an op-ed in today's New York Times calling on the Supreme Court to grant the habeas petition filed on behalf of Georgia death row inmate Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

According to Barr, federal courts have read the Anti-Terrorism and Effective Death Penalty Act (AEDPA) too narrowly, and the law was not intended to preclude habeas petitions asserting actual innocence.


S.C. Stimulus Fight in Federal Court:

Today a federal district court in South Carolina will hear arguments from attorneys for South Carolina Mark Sanford that litigation over whether the state legislature can force the acceptance of federal stimulus money over the Governor's objection should occur in federal court. Two other lawsuits have already been filed against Governor in state court seeking to force him to accept the money. These suits would be put on hold in state court if the federal court agrees to hear the case.

Why does Governor Sanford want this case to be heard in federal court? One reason is that the litigation turns on an application of federal law, specifically the stimulus bill. Under the stimulus, the Governor argues, the Governor has the authority to accept or reject funds. As the Governor argues in one of his briefs to the court:

the central legal issue in these three cases is whether the General Assembly may use a state law to transfer Governor Sanford’s discretionary authority under a federal law to itself. That issue, which is one of federal preemption, is controlled by the United States Supreme Court’s decision in Lawrence County v. Lead-Deadwood School District, 469 U.S. 256 (1985). In Lawrence County, the Supreme Court held that when the federal government grants a specific entity of state or local government discretionary authority over the use of federal funds, any attempt by a state legislature to dictate through state law how that federal money is spent is preempted by federal law.
This federal question, the Governor argues, gives the federal court jurisdiction to hear the case.

Another reason for wanting this case to be in federal court is that the South Carolina Supreme Court may be too inclined to side with the state legislature, in part because it's the state legislature that elects them to office. Article V of the South Carolina Constitution provides:

The members of the Supreme Court shall be elected by a joint public vote of the General Assembly for a term of ten years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years. In any contested election, the vote of each member of the General Assembly present and voting shall be recorded.
There is no bar on successive terms, so each member of the Court could seek reelection before the state legislature again. Given what's at stake, it's understandable why the Governor would think the state Supreme Court might not be the most neutral forum. Indeed, I'm inclined to think the case for recusal of the state Supreme Court's justices is stronger here than in Capterton v. A.T. Massey Coal, but if the state Supreme Court were to take the case, I doubt any of the justices would in fact recuse.

UPDATE: The Governor's website has links to press releases and legal filings here.


Sunday, May 31, 2009

Jeff Rosen Quits "Blogging":

NPR reports.


What the New Deal Court Did Not Do: Tomorrow (Monday), the Cato Institute will be holding an afternoon conference on Brother, Can You Spare A Trillion? Lessons from the New Deal and Great Depression. Registration information is here. The conference features a keynote address by Amity Shlaes, author of the bestseller The Forgotten Man: A New History of the Great Depression. From 3:15-4:30p.m. I will be speaking at a session on "The Constitutional Legacy of the New Deal" along with Jeff Rosen and David Schoenbrod. My talk is entitled, "What the New Deal Court Did Not Do." You may be surprised at the answer.

What Counts As "Business Law" Experience?

David Frum slammed Judge Sonia Sotomayor for lacking any meaningful business law experience. Bernard Harcourt cried foul. Paul Horwitz considers the evidence and renders a verdict (three actually).

An interesting sidenote: As one of Horwitz's commenters observes, Justice Thomas is the only member of the current court to have worked in-house for a corporation.

UPDATE: Frum defends himself from Harcourt here.


24 Season 3 and the Duty to Rescue [spoiler alert for those who haven't seen the season yet]:

I'm rather behind the times, but I just finished watching season 3 of "24." As you may recall, when Alan Milliken is dying of a heart attack, his wife Julia is about to give him his heart pills when the president's ex-wife Sherry persuades her not to. Alan, being handicapped, can't get to the pills himself, and dies.

For the rest of the season, Julia and Sherry worry that they are going to be convicted of murder. My question is whether such a charge would stick under California law for either or both. There is generally no duty to rescue, but as Alan's wife, did Julia have some legal obligation, enforceable by criminal law, to come to his aid? And while I presume Sherry had no legal obligation whatsoever to Alan, did she somehow violate the law by persuading Julia not to give him the pills?

UPDATE: The standard answer in criminal law is that a spouse does have a duty to rescue, enforceable by criminal law. That leaves the question of Sherry's liability. What exactly would she be guilty of?


More Rights at Gitmo, Fewer Elsewhere?

Jack Goldsmith observes that the expansion of legal rights for Guantanamo detainees and restrictions on rendition have been offset by other measures designed to compensate for the costs of the new limitations.

A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower. The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process.

As Goldmsith notes, this shift may have negative consequences for both intelligence gathering and human rights – but it has PR benefits. As Goldsmith concludes:

After nearly eight years without a follow-up attack, the public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice. The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe. When one of its approaches to terrorist incapacitation becomes too costly legally or politically, it shifts to others that raise fewer legal and political problems. This doesn't increase our safety or help the terrorists. But it does make us feel better about ourselves.

Related Posts (on one page):

  1. More Rights at Gitmo, Fewer Elsewhere?
  2. Does Jack Goldsmith Prefer Barack Obama to Dick Cheney?

Is Sotomayor A Legal Realist? (And Are Those Fighting Words?)

Rick Hills doesn't think it makes sense to call Judge Sonia Sotomayor a "legal realist."

Meanwhile, Politico reports "legal realism" may become the new "judicial activism."

Related Posts (on one page):

  1. Is Sotomayor A Legal Realist? (And Are Those Fighting Words?)
  2. Sonia Sotomayor: Legal Realist:

Looking for First-Rate Student Notes:

For the fourth edition of my Academic Legal Writing book, I’d like to include an entire student-written article -- with comments (in the margins or in between paragraphs) on my part -- to use as a good example for readers. To be optimal, the article should be (1) very well-written, (2) very well-reasoned, (3) 40 law review pages or shorter (shorter would be better), (4) preferably on a topic that readers would find interesting, and (5) written when the author was still a student (though it need not have been denominated a student Note or Comment). I would also of course ask the author and (if necessary) the journal for permission to reprint and comment on the piece, and some of my comments will likely be a bit critical. But my goal is to find an article that’s so good that the criticisms will be very few, and most of the comments will be an explanation of why a particular paragraph or argument works well, not of why it doesn’t.

Can any of you recommend such an article that you have objectively reviewed, and that you think is excellent? Many thanks.


Rosen on (Progressive) Judicial Minimalism and Obama:

The piece by Jeff Rosen that Orin links to below is interesting, and well worth reading, but the part about Obama's philosophy in appointing Justices is, in a word, fanciful. When Obama decided on his first Supreme Court nominee, he wasn't looking for the most distinguished appointment, the nominee most likely to create a new type of liberal judicial paradigm, or, for that matter, a judicial minimalist cognizant of the lessons of the past fifty years as elaborated upon by such brilliant liberal theorists as Jack Balkin, Barry Friedman, and Pamela Karlan. Rather, it's pretty obvious he went for what seemed to be the best political choice: a respected Hispanic woman with a compelling life story.

Sotomayor obviously has far more than the minimal paper qualifications to be a Justice, but no one I've spoken to, or for that matter read in print, has made the case that she is the best nominee to push forward any particular liberal agenda. Indeed, most observers seem to think she is less capable than her primary short-list competitors, and Obama did not have any of the many exceptionally well-qualified white males on that list.

Taking political considerations into account when appointing Justices is hardly unique to Obama. You'd be hard-pressed to find anyone who thinks that Harriett Miers, Clarence Thomas, David Souter, Anthony Kennedy, Sandra Day O'Connor, or John Paul Stevens were the most distinguished candidates available to the presidents who nominated them (and even Justice Scalia was chosen, in part, to woo the ethnic Catholic vote). The past four appointments, two by President Bush and two by President Clinton, were actually unusual historically in that the candidates selected were, in fact, arguably on any reasonable short list for the best available candidates. Selecting a merely excellent or very good candidate for political reasons is a reversion to recent historical norms.

But Rosen's piece reminds of something more broadly applicable to Obama supporters. Many of them seemed to hope and believe that Obama was destined to be not just a standard liberal Democratic president, but in some sense a transformative one, who would reinvent liberalism for the 21st century and bring it back to the political dominance it had between the New Deal and the 1960s. I've seen very little evidence that this is the case; Obama seems to be governing more like a reincarnated Tip O'Neil, sensitive primarily to the concerns of Democrats in Congress and various Democratic or potentially Democratic political constituencies, than like the visionary of liberal dreams. And the Sotomayor appointment is just additional evidence.

Related Posts (on one page):

  1. Rosen on (Progressive) Judicial Minimalism and Obama:
  2. The Constitution in Exile, Take 2:

And, In Some Judicial Opinions, It Hasn't Been: "With some statutes punctuation has been used to indicate that a phrase set off by commas is independent of the language that followed."

         -- United States v. Sablan, 92 F.3d 865, 867 (9th Cir. 1996).

The Constitution in Exile, Take 2: You've read about the conservative version, whether fact or fiction; now try the liberal one.

  UPDATE: Amusingly, back in 2005, I wrote about how you could imagine a version of the "constitution in exile" meme that treated the "Constitution in 2020" conference as important to the liberal version of the "movement." The imaginary critique included this paragragph:
Restoring the liberal Constutitution in Exile has become an increasingly dominant theme of progressive legal thinkers. For example, a collection of some of the nation's most prominent progressive legal minds (including Cass Sunstein) will be meeting at Yale Law School in the spring to develop "a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization." A website and blog set up for the conference reveals the agenda. For example, Bruce Ackerman sets as one of the more modest items on the agenda to "[r]oot out the federalism decisions since Lopez, and return to the status quo, circa 1994. Root all of them out, not some of them." His more "transformative" agenda would include "overrul[ing the] Slaughterhouse [cases] and mak[ing] the [Privileges and Immunities] Clause the basis for fundamental positive rights of citizenship." Other scholars at the conference urge a new Constitution entirely. One scholar urges that the Constitution must be reconceived to serve "a basic purpose: the protection of human dignity." Another contends that the law must "revisit both the 14/19th amendments and the general welfare clauses so as to take on the deep inequalities of the contemporary social order inside the United States, to reconceive the meaning of equality."

Related Posts (on one page):

  1. Rosen on (Progressive) Judicial Minimalism and Obama:
  2. The Constitution in Exile, Take 2:

Excellent List of Online Historical U.S. & English Electronic Sources,

from June Kim of the UCLA Law Library, here. Many of the links to the databases are UCLA-only, but many other universities subscribe to the databases, too — if you're at a university, chances are that you can find the sources through your library, once you know what to look for.