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Saturday, August 29, 2009

Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness Grounds: Readers who are following the Lori Drew case know that back on July 2, Judge Wu "tentatively" ruled that he was going to overturn the jury verdict. At the time, however, Judge Wu stressed that his decision was not final, and that he would eventually issue an opinion with his final ruling.

  Late yesterday, Judge Wu finally handed down his opinion. You can read it here: United States v. Lori Drew, Final Opinion. Judge Wu did in fact grant the defense motion to dismiss, ending the prosecution against Drew and overturning her misdemeanor convictions. (To my surprise, it seems that Friday's final ruling in the case has been entirely ignored by the press; I couldn't find any reference to it on the web.)

  The reasoning of the opinion is that whatever unauthorized access means, it cannot mean mere violation of Terms of Service without more. Such a reading of the statute would render the statute unconstitutionally void for vagueness because it would give the government almost unlimited power to prosecute any Internet user and wouldn't give citizens sufficient notice as to what of their Internet conduct was criminal. I'll probably have some more comments on the opinion soon, but for now I just wanted to post it so others could see it.

  As you might guess, given all the pro bono efforts I put into this case, I am very pleased by the result. This was an extremely important test case for the scope of the computer crime statutes, with tremendously high stakes for the civil liberties of every Internet user. I feel fortunate to have been able to argue the motion in January, and to have done what I could to bring about the correct result.

  Finally, I'm working on a draft article on the use of vagueness and overbreadth to challenge overly broad interpretations of 18 U.S.C. 1030, along the lines of the arguments we made (and Judge Wu accepted) in the Drew case. I'll post the draft when I have something ready enough to share.

Related Posts (on one page):

  1. Lori Drew Opinion:
  2. Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness Grounds:
66 Comments

Bicyclists, Motorists, and Safety

The Freakonimics NYT blog has a short item on bicycling accidents and who causes them - the cyclists or motorists:

When it comes to sharing the road with cars, many people seem to assume that such accidents are usually the cyclist’s fault — a result of reckless or aggressive riding. But an analysis of police reports on 2,752 bike-car accidents in Toronto found that clumsy or inattentive driving by motorists was the cause of 90 percent of these crashes. Among the leading causes: running a stop sign or traffic light, turning into a cyclist’s path, or opening a door on a biker.

This is certainly my experience as a non-serious, get around the neighborhood bike rider here in Washington DC. I ride the roughly mile in each direction between my house, school, gym, and grocery. On advice of DC police, the sidewalk is the official bike lane on Mass Ave and Nebraska Avenue. Even using the sidewalks where legal, going slowly, and all that, I am convinced that riding a bike in DC is the single most dangerous activity in my life. Much more dangerous than driving a car, for example.

My impression is that DC, MD, and VA drivers are like automatons programmed to respond only to other automobiles. Pedestrians register only faintly, and only if there is a baby carriage. Pedestrian crosswalks register not at all. Bicycles are not things recognized by the programming. Yes, it is true that cyclists go through stop signs rather than stop and muscle up again, but the biggest problems are simply that cars do not "see" us. I can see it because I almost always try to make eye contact to be sure the automobile driver sees me - and I can almost see the neurons flare up when they realize Something Is Out There. First Contact, as it were.

Police in DC are not, in my experience, any better. My routes take me past a local precinct house. It is well understood in the neighborhood that you have to be careful driving, walking, or biking in the blocks around the station house when the shift changes, and officers want to get into the station and off shift as fast as possible.

When I ride my bike in Palo Alto, California, on the other hand, all is Bliss. And Happiness. Everyone looks for you. Everyone looks at you. You know that they know you exist on the road. I think they are imagining, 'that could be me, or my kid'. But that requires space for real lanes for bikes, as well as a concerted public education program and, I would guess, a sufficiently large group of local people who both drive and ride bikes, in order to shift and tip the standard of public behavior.

When I ride around DC, I wonder if it isn't a mistake to create bike lanes that aren't really bike lanes, aren't treated by drivers or law enforcement as bike lanes, and are more like a trap for the unwary cyclist who might foolishly believe they mean something. If you really don't have room for bike lanes or the intention of creating a public culture of actual biking - and I should add, upper NW DC is remarkably hilly, at least for Middle Age Guy - then might it not be a mistake, for reasons of doing the Good Civic Thing, to go through the motions of creating, or at least announcing, them?

195 Comments

Friday, August 28, 2009

Felons and the Right To Bear Arms:

The North Carolina Supreme Court has just held, in Britt v. State, that some felons -- whose crimes are long in the past -- do have a constitutional right to bear arms, at least under the North Carolina Constitution:

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff ompleted his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and [the 2004] adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety [the constitutional test that the court was applying under the state constitution -EV]. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.

[Footnote moved:] Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff’s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.

The vote was 5-2, with four of the five Justices joining the majority opinion and the fifth concurring in the judgment without written opinion. Note that since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court (though of course it can be overturned through the North Carolina constitutional amendment process, should there be enough support for that).

Thanks to reader Steve Martin for the pointer.

92 Comments

Economic projections of the consequences of Obamacare:

A brand-new Issue Paper from the Independence Institute features an analysis by Arthur Laffer on the national and Colorado consequences of Obama care, based on a one trillion dollar increase in health care subsidies over the next decade. These consequences include:

Overall, total federal expenditures will be 5.6 percent higher than otherwise by 2019, adding $285.6 billion to the federal deficit in 2019.

An increase in national health care expenditures by an additional 8.9 percent by 2019.

An increase in medical price inflation by 5.2 percent above what it would have been otherwise by 2019.

Reduce U.S. economic growth in 2019 compared to the baseline scenario by 4.9 percent for the nation as a whole and 4.3 percent in Colorado.

Higher medical inflation and overall expenditures will ultimately lead to government expenditures that exceed the $1.0 trillion in expenditures on health subsidies. The net present value of all additional federal government expenditures through 2019 that will occur as a result of a federal health care reform is $1.2 trillion, or a $3,900 bill for every man, woman, and child in the U.S.

Despite the additional $1 trillion in expected health care subsidies by the government, 30 million people would remain uninsured. The cost to reduce the number of uninsured by 16 million people is $62,500 in subsidy expenditures per person insured.

250 Comments

TRM Howard Unlikely Civil Rights Hero:

An interesting L.A. Times op-ed by my friend David Beito and his wife Linda, authors of a recent biography of Howard.

5 Comments

Explaining Monetary Inflation and Moral Hazard through Grade Inflation:

This being add-drop first class week at my school, I started my two classes in corporate finance and international business transactions with a discussion of class policies and procedures, grading, and so on. I suppose I might have skipped over all that, as I had earlier distributed a lawyer-like five page memo stating everything very clearly - but, as ever, the first day of class convinced me that no one had actually read it, not even the parts prominently titled, Grading and Exam policies.

One of the transitions that young lawyers have to make is from being a student who can assume that anything truly relevant will get explained to them. Many have been trained through demanding educational environments to value triage, triaging too much work, as their most important skill. At some point they have to learn that being the lawyer means being the person who actually reads the document that everyone else assumes you will summarize for their benefit. But they haven't learned that yet.

I had already concluded, looking over grading charts for the rest of the upper level courses, that I had allowed my mean grade to drift a little higher than I wanted over the school's mean....

(Update: I would like to invite comment to Random Physicist's tantalizing remarks - to the effect that he is not convinced that rational students would be risk averse in the way that I propose later in this post. I invite comment in particular to two issues: (1) is Random Physicist right about the strategic logic of grade-maximizing students under conditions of grade inflation/grade compression? (2) could this be cleverly understood as a version of the Efficient Market Hypothesis, and if so, what version, and what strengths or weaknesses does this deductive strategic logic imply as a version of EMH? I have brought Random Physicist's comment up into the body at the very end of the post.)

(For example: Does it matter whether this "grade inflation" comes about because students self-select into the classes in which they are most likely to get an A and therefore, in absence of a genuinely forced curve, tend to drive the curve up towards As? Versus: Grade inflation comes about for reasons independent of student self-selection, but instead for different and independent reasons, such as teachers simply wanting to hurry through the grading and a higher grade is easier to give (ie. justify to a student, such as the process is nowadays) than a lower grade?) Does the dependent or independent cause of the grade inflation matter in the explanation? And, again, what might this be seen as parallel to in EMH arguments, if anything?)

(show)

60 Comments

Answering the Questions in the Indiana Health Care Myth Survey.--

Indiana University’s Center for Health Policy and Professionalism Research (CHPPR) and the Center for Bioethics (IUCB) conducted a study on health care reform myths. In an earlier post I pointed out that the survey researchers were not sensitive to the difference between a knowledge question and a subjective prediction of future events.

Here are the relevant myth questions on the survey and my own comments about what is likely to occur if President Obama's reforms were to be enacted:

Recently, there has been a lot in the news about the health insurance reforms being proposed by President Barack Obama. I am going to read a list of statements about his proposed health insurance reform plan. After each statement, please tell me whether or not you believe it is true. [I have changed the question order.]

1. Millions of Americans will lose their current health insurance.

COMMENT: This strikes me as extraordinarily likely to occur, especially given Obama’s promises quoted in the last post. Given that Obama is proposing to change coverage, plans, and incentives, enough will change that it is either naïve or dishonest (or both) for a survey researcher to call this statement a “myth.”

2. Wait times for health care services like surgery will increase.

COMMENT: This strikes me as extraordinarily likely to occur. Increasing the scope of coverage without appreciably increasing the number of doctors should lead to longer wait times. Again, it is either naïve or dishonest (or both) to call this a “myth.” Further, the Massachusetts experience is not encouraging.

3. Health care services such as treatments, physicians, and care will be rationed.

COMMENT: Given that the White House admits that rationing is already happening by private insurance carriers, I don’t understand why they think that rationing in some form is unlikely under their proposed reforms. I suspect, however, that the government will find it difficult to make many of the tough decisions, so that most "rationing" will occur not by the government denying care but by doctors being unable or unwilling to treat many of the patients covered under government or private insurance plans. Time will tell.

4. Reforms will cover more Americans by making cuts to Medicare.

COMMENT: Given President Obama’s own statements, I don’t see how any honest researcher can call this a “myth.” In his New Hampshire town hall, Obama said that he will accomplish health care reform “without adding to our deficit over the next decade, largely by cutting out the waste and insurance company giveaways in Medicare that aren't making any of our seniors healthier.” So Obama is promising to make large cuts in Medicare funding without compromising the health of seniors. I have my doubts whether Medicare funding will be cut substantially by anything other than longer waits for Medicare patients who want treatment under Obama's health care reform. Time will tell.

5. Tort reform, which would limit the amount of money awarded to injured patients in malpractice cases, will decrease health care costs.

COMMENT: Given the conflicting scholarly literature on this, I don’t see how any honest researcher could call this a “myth.” For example, Ronen Avraham and Max Schanzenbach reviewed 7 tort reforms and concluded that some had no effect while others “are effective in reducing healthcare costs. The magnitude of the effects on price sensitive groups suggests that some tort reforms can reduce health care costs by as much as two percent.”

6. Small businesses will be hurt.

COMMENT: Time will tell, but I would expect this prediction to be more likely to be TRUE than not.

7. The Federal Government will become directly involved in making personal health care decisions for you.

COMMENT: Whether this is likely to turn out to be TRUE depends on what is meant by “directly involved in making personal health care decisions for you.” By creating panels that will mandate some coverage and refuse to reimburse other coverage, this assertion will probably be TRUE for many people. But if the question means that government officials will decide on your treatment on a case-by-case basis, this is likely to be FALSE. Participants in the public option, however, may have case-by-case decisions made on which sorts of coverage will be reimbursed, given their diagnosis and condition.

8. The Federal Government will make decisions about whether you will be treated or not.

COMMENT: Again, whether this is likely to turn out to be TRUE depends on what is meant by making “decisions about whether you will be treated or not.” By creating panels that will mandate some coverage and refuse to reimburse other coverage, this assertion will probably be TRUE for many people. But if the statement means that government officials will decide on your treatment on a case-by-case basis, this is likely to be FALSE. Participants in the public option, however, may have case-by-case decisions made on which sorts of coverage will be reimbursed.

9. A government official will be put in charge of your medical records.

COMMENT: It seems likely that a “government official will be put in charge of” making sure that your medical records are collected and shared and in evaluating your records along with almost everyone else’s. If this is what the statement means, then it will probably turn out to be TRUE. If the statement instead means that the primary keeper of your records will be the government, I would guess that this will turn out to be FALSE.

10. Private insurance coverage will be eliminated.

COMMENT: If this means ALL private insurance coverage will be eliminated, this should turn out to be FALSE in the short and medium term. In the long run, time will tell.

11. Employer-sponsored insurance coverage will be eliminated.

COMMENT: If this means that ALL employer-sponsored insurance coverage will be eliminated, this should turn out to be FALSE in the short and medium term. In the long run, time will tell.

12. A public insurance option will put private insurance companies out of business.

COMMENT: If this means that ALL private health insurance companies will go out of business, this should be turn out to be FALSE in the short and medium term. In the long run, time will tell.

13. The government will require the elderly to make decisions about how and when they will die.

COMMENT: This should be turn out to be FALSE in the short and medium term. The existing law already requires that people admitted as inpatients to hospitals must be asked whether they want an advanced directive. In the next decade, I think it unlikely that the elderly will be REQUIRED to fill out advanced directives. Certainly, none of the bills I've seen would require this.

14. The elderly will have to undergo euthanasia counseling every 5 years.

COMMENT: This should turn out to be FALSE. Certainly, none of the bills I've seen would require this.

15. Taxpayers will be required to pay for abortions.

COMMENT: Time will tell. It is likely that abortion will be covered in a public plan, so whether “Taxpayers will be required to pay for abortions” turns on whether the participants in a public plan will actually bear ALL the government’s cost of such a plan. If they do, then this will turn out to be FALSE. If instead the public option is subsidized by taxpayers (as seems probable whatever Obama's hopes might be), then this statement will likely turn out to be TRUE.

16. All illegal immigrants will be covered.

COMMENT: Given the extreme wording of the statement, as unrealistically stated this assertion will almost certainly turn out to be FALSE. But this is a ridiculous question because not even all US citizens will be covered by insurance plans; some will pay penalties for noncoverage. If the statement were reworded to say that “some illegal immigrants will be covered,” then this expectation might turn out to be TRUE, if only because enforcement is likely to be lax. Time will tell.

17. A “public option” that competes with private insurance will be too expensive for the United States to afford.

COMMENT: Time will tell.

18. A “public option” will increase health care costs, not lower them.

COMMENT: Time will tell.

19. A “public option” will actually increase premiums for Americans with private insurance.

COMMENT: Time will tell.

Related Posts (on one page):

  1. Answering the Questions in the Indiana Health Care Myth Survey.--
  2. Problems with an Indiana Survey on Health Care Myths.--

Problems with an Indiana Survey on Health Care Myths.--

A SURVEY OF HEALTH REFORM MYTHS

I have seen several references to a University of Indiana opinion study on the public’s belief in health care myths. Because the study was conducted by reputable professionals, I had assumed that the study’s sponsors would know more about the theory of opinion polling than they do.

Dr. Aaron Carroll, who directs the IU Center for Health Policy and Professionalism Research, commented about his center’s study on MSNBC:

“More than half of Americans believe so many of these myths that it’s really quite clear that the administration and Congress just aren’t getting the message out about what health care reform is really going to do.”

If you look at the survey, you see that most of the supposed knowledge questions do not turn completely on known facts, which can have true or false answers. The myth questions are mostly subjective — expectations or predictions about the future — which by nature have no right or wrong answers. This distinction is axiomatic in the field of survey research.

Of course, most of these predictions could at some future time be determined to be true or false by most fair-minded observers, but not now. A few of the predictions about the future strike me as being extremely likely to turn out to be correct (if Obama's plans were enacted) and a few strike me as strike me as being extremely likely to turn out to be incorrect predictions. If Obama's plans are ever enacted, time will tell. But they are not now “myths.”

EXPECTATIONS OF FUTURE EVENTS IN SURVEY RESEARCH

Expectations of future events are classically understood as subjective questions. Willem E. Saris and Irmtraud Gallhofer distinguish subjective from objective survey variables:

Subjective variables include cognitions, evaluations, evaluative beliefs, feelings, preferences, values, rights, norms and policies, action tendencies, expectations. Objective variables include behavior, past events, demographic characteristics, knowledge, information about time, place, procedures and frequency. . . .

By subjective variables, as stated, we understand variables for which the information can only be obtained from a respondent because the information exists in his/her mind alone. Operationalization of Social Science Concepts by Intuition, Quality & Quantity 38: 235–258, 238, 241 (2004).

Saris and Gallhofer go on to explain Expectations of future events (at p. 246):

Expectations of future events (Graesser et al., 1996) are anticipations of events in which oneself is not involved. . . . For example:

I expect better weather in the near future

. . . The difference with the previous type of assertion [action tendencies] is that an expectation does not relate to the respondent’s own action but it refers to some kind of event which is not connected with one’s own behavior.

Here ends our overview of concepts by intuition that fall under the heading of subjective variables. They are all characterized by assertions based on information that can only be obtained from respondents because they represent subjective variables and these views can not be checked in any way because they are personal views.

In other words, most of the myth questions in the Indiana survey are questions about subjective views (expectations, opinions, attitudes, and beliefs), not currently knowable facts. For a social scientist reporting a survey to call them “myths” violates general principles of opinion polling.

OBAMA’S PROMISE TO MAKE COMPANIES CHANGE INSURANCE PLANS

Before getting into the survey questions themselves, people should remember what President Obama said in his first August town hall meeting on health care in New Hampshire:

Under the reform we're proposing, insurance companies will be prohibited from denying coverage because of a person's medical history. Period. . . .

Now, when we pass health insurance reform, insurance companies will no longer be able to place some arbitrary cap on the amount of coverage you can receive in a given year or a lifetime. And we will place a limit on how much you can be charged for out-of-pocket expenses, because no one in America should go broke because they get sick. (Applause.)

And finally — this is important — we will require insurance companies to cover routine checkups and preventive care, like mammograms and colonoscopies — (applause) — because there's no reason we shouldn't be catching diseases like breast cancer and prostate cancer on the front end. . . .

So this is what reform is about.

I quote this to remind skeptics that President Obama is promising to prohibit insurance companies from offering lower cost plans with high deductibles, which some younger people in good health currently prefer. In other words, some of you who like your current health plans will not be allowed to keep them.

Next: Answering the Questions in the Indiana Health Care Myth Survey.

Related Posts (on one page):

  1. Answering the Questions in the Indiana Health Care Myth Survey.--
  2. Problems with an Indiana Survey on Health Care Myths.--

Thursday, August 27, 2009

Can the FTC Regulate Lawyers As Creditors?

Four years ago, the U.S. Court of Appeals for the D.C. Circuit struck down the Federal Trade Commission's attempt to regulate lawyers and law firms as "financial institutions" under the Gramm-Leach-Bliley Financial Modernization Act in American Bar Association v. FTC. According to the FTC, lawyers and law firms engage in "financial transactions" and provide "financial services," such as tax and estate planning and real estate settlement. Therefore, the FTC reasoned, it could impose the Gramm-Leach-Bliley Act's privacy provisions to lawyers and law firms. The D.C. Circuit was not buying it, however. The statute was silent as to whether it applied to lawyers. Yet whereas the FTC saw this as reason for the Court to defer to the Commissions reasoned (if expansive) statutory interpretation, the Court concluded that a statutory silence about the existence of agency power is not the sort of ambiguity that would trigger Chevron deference, but a simple failure to delegate the relevant power in the first place.

It seems that the FTC did not learn its lesson. Once again it is trying to impose financial privacy protection rules on lawyers and law firms. This time, however, it claims it has such authority under the Fair and Accurate Credit Transactions Act of 2003. This law's privacy provisions apply to all "creditors." Lawyers and law firms qualify as "creditors" (as do doctors and many other professionals) the FTC argues, as they do not bill their customers until after they provide their services. The FTC's definition seems quite broad to me. [Interestingly enough, it does not appear that the term "creditor" is defined in the bill's definition section — at least I didn't see it.] [“Creditor” is defined in the ECOA as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.” As this language is interpreted by the FTC,] my roofer would seem to qualify, as I did not receive an invoice and have to pay a cent until the job was completely done. Does this mean he was a "creditor" covered by the FTC's new regs? If so, I would expect he might have a more difficult time complying with the FTC's rules than most lawyers. [While the contract I signed with my roofer required payment upon completion of the work, he made clear that I had a few days if I wanted it; if this is his common practice, does he "regularly extend" or "continue" credit?]

The American Bar Association is going back to court to challenge the FTC. Whereas the FTC claims it is required to apply its so-called "Red Flag Rules" to all those who extend credit, and thus cannot exclude lawyers (or doctors, or other professionals), the ABA argues the FTC is engaged in dramatic regulatory overreach.

Given what happened the last time these two tangled in the D.C. Circuit, I'd think the ABA has to be the favorite going in. Indeed, it almost appears the FTC is getting cold feet, as it has repeatedly announced it is delaying enforcement of the contested rules.

The ABA's complaint is here. Additional covereage here. Nathan Sales and I also discuss the initial ABA v. FTC case in our forthcoming article "The Rest Is Silence:Chevron Deference, Agency Jurisdiction, and Statutory Silences" (Univ. Ill. L. Rev. 2009).

[NOTE: Post edited as indicated above. I had somehow overlooked the definition of "creditor" in the legislation. This makes the FTC's regulation somewhat plausible, though I still think there's a decent chance it will be struck down.]

34 Comments

What Happens When Comprehensive Drug Testing Meets the New Rule 41?: One of the remarkable aspects of the new Ninth Circuit computer search and seizure case, United States v. Comprehensive Drug Testing, is that some of its new rules conflict with the new version of Federal Rule of Criminal Procedure 41 that the United States Supreme Court recently adopted and that is set to go into effect in December. What is going to happen when the new Rule goes into effect? Does the Supreme Court's rule trump the Ninth Circuit's case, or does the Ninth Circuit's case trump the Supreme Court's rule? The answer ends up being a little complicated.

  By way of background, Rule 41 is the rule that regulates federal search warrants. A new version of Rule 41 is set to go into effect in December, and several of its provisions are designed specifically to deal with the new dynamics of computer search and seizures. These rule changes have been in the works for a few years, and the United States Supreme Court adopted the new rules in March. (As an aside, permit me to add with a bit of pride that an article of mine originally helped spur the Rules Committee to address these questions; see Page 13 of this report.)

  It turns out that several of the new changes in the Rules are designed to deal with exactly the problems that the Ninth Circuit tried to solve with yesterday's case. But the two approaches are very different: The United States Supreme Court adopted one approach in March, and the Ninth Circuit then announced a conflicting set of rules yesterday.

  For example, consider the question of what the government is supposed to do when agents execute a search warrant for computers, copy the originals to analyze them, and then return the original. Can they keep the copy that they generated? The new version of Rule 41 says that they can. It states: "The officer may retain a copy of the electronically stored information that was seized or copied." But the Ninth Circuit announced the opposite rule yesterday. Judge Kozinski's opinion states: "The government may not retain copies of such returned data, unless it obtains specific judicial authorization to do so."

  Similarly, consider what kind of notice agents must give the issuing judge as to what was seized, something generally known as the "return" on the warrant. Does the notice need to be of what hardware was seized, or of what data was seized? The new Rule 41 states that the notice need only be of the hardware: "In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied." Again, though, the Ninth Circuit's opinion yesterday announced the opposite rule: "within a time specified in the warrant, which should be as soon as practicable, the government must provide the issuing officer with a return disclosing precisely what data it has obtained as a consequence of the search, and what data it has returned to the party from whom it was seized."

  So what happens on December 1, when the new Rule 41 goes into effect? Does the new Rule 41 trump the 9th Circuit decision, or does the 9th Circuit decision trump the new rule?

  Formally speaking, the answer would seem to hinge on whether the new decision was announced as part of the federal supervisory powers authority or whether it was intended as a Fourth Amendment decision. Presumably, a rule handed down by the Ninth Circuit as part of its supervisory powers would give way to a contrary federal rule formally adopted by the United States Supreme Court. If so, then those parts of the new decision that conflict with the new federal rules will have a very short shelf life. On the other hand, if the new rules are intended as constitutional rules, then the Ninth Circuit's rule would trump the new federal Rule.

  So is the source of the Ninth Circuit's new decision the federal supervisory power, or is its source the Fourth Amendment? It's kind of hard to tell, as Ninth Circuit announced the rules with no citations to authority or discussion of where they were getting any of it. As best I can tell, the majority opinion does not bother to identify the source of its authority. At times the opinion mentions the Fourth Amendment, but not with particular seriousness: For the most part the court just handed down the rules.

  One complicating factor is that the Supreme Court has said that courts can't used the supervisory power as a sort of supplement to Fourth Amendment protection. Consider United States v. Payner, 447 U.S. 727 (1980), a case on the interaction between the Fourth Amendment and the federal supervisory power. In that case, the Sixth Circuit used the supervisory power to exclude evidence that the Fourth Amendment did not, as a sort of supplement to Fourth Amendment protection. The Supreme Court reversed, rejecting the use of the supervisory power "as a substitute for established Fourth Amendment doctrine."

  If the new Ninth Circuit decision is in fact a supervisory powers case, then it seems clear that the bulk of it is being used as a substitute for established Fourth Amendment doctrine: As I explained yesterday, the major rules in the case are designed to effectively negate the Fourth Amendment's plain view exception in the context of digital evidence cases. Under Payner, then, that would seem to be unlawful use of the court's supervisory powers (as Judge Ikuta's dissent suggests).

  On the other hand, if the new decision is a constitutional decision, then we end up with a very odd juxtaposition: The new case has several pages of new constitutional rules handed down with no citations based on no particular facts that conflict with rules the United States Supreme Court adopted just a few months ago.

  Either way, this is a pretty remarkable situation.
23 Comments

Glass Control:

From the BBC News:

Plans to replace the traditional pint glass with one made of shatter-proof plastic will not be accepted by drinkers, the pub industry has warned.

The Home Office has commissioned a new design, in an attempt to stop glasses being used as weapons.

Official figures show 5,500 people are attacked with glasses and bottles every year in England and Wales....

An accompanying statistic reports that "[a]pproximately 126 million pints of beer are served a week in the UK"; if the 5500 attacks were all using pint glasses or pint bottles, that would be about one attack per million pints served. Thanks to Kurt Kastorf for the pointer.

85 Comments

Hitting the Big Time:

I've now made it to the highest-circulation publication that I've ever written for -- more than three times the circulation of the Wall Street Journal, my previous record. That is, of course, Costco Connection, with a circulation of nearly 8 million. The only way I could beat that, at least in an English-speaking country, is with Reader's Digest (a bit over 8 million), or the (with AARP Bulletin or AARP Magazine (over 24 million).

The item is on "Is legislation the right way to deal with cyberbullies?," and I'm up against Rep. Linda Sanchez, backer of the Megan Meier Cyberbullying Prevention Act.

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Preference for Public School Over Homeschooling -- and Maybe Private Schooling -- Because It Provides "Exposure to Different Points of View"?

That's what this New Hampshire trial court decision, in In re Kurowski & Voydatch seems to say. The 10-year-old daughter lives during the week with her mother, Ms. Voydatch, who homeschools her. The father, Mr. Kurowski, objected to the homeschooling, and the court adopted the father's proposal that the girl be sent to public school, apparently for largely these reasons:

[The daughter] appeared to reflect her mother's rigidity on questions of faith. [The daughter] challenged the counselor to say what the counselor believed, and she prepared some highlighted biblical text for the counselor to read over and discuss, and she was visibly upset when the counselor (purposely) did not complete the assignment....

The Guardian ad Litem ... concluded that the daughter would be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior and cooperation in order to select, as a young adult, which of those systems will best suit her own needs....

[T]he Guardian ad Litem [also] echoed her previous concerns that Amanda's relationship with her father suffers to some degree by her belief that his refusal to adopt her religious beliefs and his choice instead to spend eternity away from her proves that he does not love her as much as he says he does....

[T]he Court is guided by the premise that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts, and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.

The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the [local] public school system. Instead, the debate centers on whether enrollment in public school will provide [the daughter] with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view.... [T]he Court concludes that it would be in [the daughter's] best interests to attend public school....

In reaching this conclusion, the Court is mindful of its obligation not to consider the specific tenets of any religious system unless there is evidence that those tenets have been applied in such a way as to cause actual harm to the child. The evidence in this case does not rise to that level, and therefore the Court has not considered the merits of [the daughter's] religious beliefs, but considered only the impact of those beliefs on her interaction with others, both past and future. The Court declines to impose any restrictions on either party's ability to provide [the daughter] with religious training or to share with [the daughter] their own religious beliefs.

The decision is just about home schooling by one divorced parent, where the other parent wants the child sent to public school. But it would in principle also apply to similar disputes over private religious schooling (or private ideologically grounded schooling), since there too the other parent might complain that the schooling is too limited in the "points of view" to which the child is exposed. (Of course, some public schools might be quite limited in the points of view that they teach, and even in the points of view expressed by most students; but my guess is that few courts would be willing to say so.)

The broad principle might also apply beyond divorced families. To be sure, in practice American courts rarely intervene in the educational decisions of intact families, at least absent some evidence of significant abuse. Likewise, the legal standard for such intervention in intact families is much more demanding (requiring some showing that the parents' approach risks causing imminent harm to the child, and not just a judgment that departing from the custodial parent's approach would be in the child's best interests).

But if the legal system becomes genuinely concerned about the supposed lack of "different points of view" to which a child is exposed, that concern should if anything be greater when the child is in an intact family — where both parents are likely to be exposing the child to the same viewpoint — than when the child is in a divorced family in which the parents have different viewpoints. At least in this case, the father could expose the daughter to viewpoints other than the mother's (though that might be quite hard given the daughter's pushback, which in turn seems likely to stem in large part from the mother's greater time with the daughter). In an intact family that homeschools a child or sends the child to private school, the child might not get any "different points of view" from any trusted adult or even from other children. So the logic of this decision, if accepted, might well eventually carry over to decisions about intact families, too.

And the decision strikes me as constitutionally troublesome, whether implemented in broken families or in intact families. It may well be in the child's best interests to be exposed to more views in public school — or it may well be in the child's best interests to avoid the views that public school will expose her to. Those are not judgments that courts should generally make given the First Amendment.

That's especially so since it's hard to imagine courts actually adopting a facially supposedly viewpoint-neutral approach that "exposure to more viewpoints is better." I take it that if a racist parent was complaining that the other parent wasn't exposing their daughter to a wide range of viewpoints on the subject of racism, a judge wouldn't consider that; likewise for a wide range of other views. Likewise, the judge seems to have been moved by the conclusion that the daughter was "rigid[] on questions of faith"; presumably if the mother were teaching the child less "rigid" views about religion, the judge would not have been as troubled (though some other judge might have been more troubled). Judges' decisions that more viewpoints are better will almost always be based on an evaluation of what those viewpoints are likely to be, and what viewpoints the child is being taught.

This having been said, the court decision asserts that the parents — who do have "joint decision-making responsibility" — had never agreed on the public schooling vs. homeschooling question, and "reserved for the Court the issue whether Amanda would attend public school for the 2009-2010 school year, or continue to be home schooled by Ms. Voydatch." Nor is the case like a normal parental speech dispute, in which, absent court action, both parents would be free to say whatever they wanted to the child. Here, a choice must be made between home-schooling and public schooling; the child can't do both. (The child could of course go to public school and learn more at home, but that would obviously be different from a standard home-schooling approach.) Nor is there an obvious neutral principle that could be followed here, for instance the child's likely academic success in either approach — it looks like the daughter is doing very well with home-schooling, but there seems to be no evidence that she won't do roughly as well with public schooling in this district. Nor can one have a preference for continuing the child's pre-divorce education; the parents had been divorced for pretty much the daughter's whole life.

My inclination, though, is that a court should generally try to choose some neutral basis for the decision that would not require it to evaluate the merits of various viewpoints, or to evaluate whether the daughter needs exposure to more viewpoints of the sort she's likely to get in public school. Even a preference for the choice of the primary residential custodian, however imperfect this might be, would at least keep courts out of deciding when a child's religious views are too "rigid." Government decisions about which schools children should go to, or what they should be taught, shouldn't be based on judges' views about which views are unduly rigid, or atheistic, or racist, or pro-gay-rights, or anti-gay, or what have you.

The Alliance Defense Fund has more on this case, including pointers to its filings in the case; I would of course also be glad to include links to the other side's filings, when and if such links become available. Thanks to Duncan Frissell for the pointer.

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Souter Papers to Be Sealed for Fifty Years: Or, as Justice Souter himself would put it, two score and ten years.
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New DHS Directives on Computer Search and Seizure at the Border: The press release is here, with links on that page to the Customs directive, the ICE directive, and a privacy impact statement.
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[Thomas Cooper, guest-blogging, August 27, 2009 at 3:57pm] Trackbacks
On the Propriety and Expediency of Unlimited Enquiry (Continued):

... I proceed to the particular objections [to unlimited enquiry].

I. The propagation of falsehood is as injurious, as the propagation of truth is beneficial....

Who is to be the judge of truth or falsehood? The lawgivers who sedulously screen their own conduct from the public eye? If those who arrogate the right to decide on the truth or falsehood of opinion (for of facts we will speak presently) are liable to be mistaken, do they not deal out their punishments in the dark? And who can pretend to political infallibility? ...

No error can be forcibly suppressed but at the hazard of suppressing truth also. Galileo was imprisoned. Locke was interdicted in an English university. Common Sense was sedition in America, and the Rights of Man are sedition in Great Britain. In how many countries was the perusal of the Bible prohibited? ...

VI. The right of unlimited discussion, or rather accusation, would tend to exclude valuable men from public offices: for they would be cautious of exposing themselves to situations of unmerited calumny.

Every situation has its peculiar advantages and disadvantages, which arise from the same source, and are generally proportionate to each other. Elevated stations attach distinction and celebrity, but in cases of real or supposed dereliction of duty, they incur a proportionate degree of reproach and obloquy. The man who enjoys the one, must run the risk of the other. Indeed, persons in these cases seem prone enough to think the former, a sufficient compensation for the latter; nor do we find that offices of profit or of honour are frequently rejected from this refined delicacy.

Ingratitude is not a vice common to the public mind; but excessive, unreasonable gratitude and veneration of high civil rank, is a weakness to which in all ages it has been peculiarly prone. Aristides, it is true, was banished, and Socrates put to death; but the annals of every nation testify, that while a single meritorious act in a prince or magistrate, will often excite veneration approaching to idolatry, a thousand instances of the wanton abuse of power -- of arbitrary and oppressive conduct, have passed unnoticed....

VIII. The mass of the people are, and always will be ignorant, and therefore we ought not to permit their prejudices to be worked upon by designing men. Witness the Western insurrection and the Northampton riots.

The most effectual way to keep the people ignorant, if they are so, is to perpetuate those restrictions on freedom of enquiry, which this objection is intended to support. Diffuse knowledge -- enable the people to read, and incite them to think, and the objection is done away: they are no longer Mr. Sedgwick’s ignorant herd, or Mr. Burke’s swinish multitude. I know, and allow, that the modern doctrines of the perfectibility of man, can never take away the necessity of human labour, or make every blacksmith a Newton; but every man may and OUGHT to be taught to read, to write, and to be familiar with the common operations of arithmetic: he ought to have the means of knowledge put in his power; nor does any station imply, of necessity, such unremitting labour as not to afford some leisure to make use of these means. The country where this unremitting labour is necessary to the comfortable subsistence of any class of the community, is a bad one; in some shape or other there is despotism in it. The country where every man and woman cannot read and write, has reason to complain of its rulers. These truths require no defence in the present day, however they may be neglected, and in this country shamefully neglected, in practice. The objection then destroys itself; if the people are ignorant it is for want of the general diffusion and practice of the truths which discussion would bring incessantly into view. And when it is considered that the cautious opinions of philosophers of half a century ago, are now common axioms, especially on political subjects, the argument from ignorance can be of little weight.

As to the Western insurrection, and the riots in Northampton county, much as was made of them at the time, and most grossly as they have been exaggerated, they would never have happened at all, if reasoning and argument, if fair representation and mild and conciliatory remonstrance, had been sufficiently the precursors of military force. But that military force has taught the people to think as well as to obey, and in those counties where its effects have been experienced, there are few indeed so ignorant, as not to feel the extreme importance of public investigation, unlimited by the powerful jealousy of those whose conduct is obnoxious to it.

It is the general diffusion of knowledge -- it is free discussion, that eradicates the prejudices of the people: a prejudice, or prejudgment, is a view of one side of a question, and an opinion formed and acted on from this partial view, before all the facts and arguments that may be conveniently obtained, are fairly considered. It is self-evident that the right we contend for is the cure of prejudice. In like manner, people will be governed by their passions, if they are not governed by their reason. What is the cure for this evil? Surely to call their reason into play -- to incite them to reflect -- to teach them that every question has two sides -- that as their neighbour is not infallible, so neither are they. In short, to accustom them to free enquiry on all subjects.

In a government in which the people have a voice -- in all governments not completely despotic, it will surely be allowed that some knowledge is requisite in the people at large. The better they are informed, the more readily may they be expected to approve and acquiesce in wise measures. Ignorance, we grant, is the certain parent of error and obstinacy, nor can there be a more effectual means of removing it, than the free exercise of the right in question. If the complaints of the multitude, be they well or ill founded, are forcibly suppressed, there is danger: for people will think, though they may be prohibited from speaking; and sometimes they will act: but in nine cases out of ten, let the ebullitions of political opinion evaporate as they arise, and they will not acquire force enough to justify apprehension.

IX. An author is sufficiently protected where he is permitted to defend himself, as in this country, by giving in evidence the truth of the facts stated.

This is not a sufficient protection; for, a public fact may be notorious, and yet strict legal proof almost impossible to be procured by an individual. Suppose it commonly known and believed in England, that Lord Hawkesbury has declared there is a British party in this country; or that such a sentiment were expressed in a report of the council, how could an author here bring forward legal evidence of the fact? Secondly, The expence of producing such evidence, even where it could be obtained, is sufficient to discourage any author from stating a known fact, where the purse of the government is to be employed against him. Suppose I were to assert, that Mr. Pickering wrote a letter to Judge Bee, stating that it was the advice and request of the President that Jonathan Robbins should be given up to the British, must I not (legally speaking) resort to Carolina or to Braintree for evidence, should the President be gone home? Thirdly, This liberty still leaves opinion open to punishment. We cannot draw conclusions with impunity, if they tend directly or indirectly, in the cautious language of our sedition law, to criminate the persons whose characters are sheltered by that law. For the investigation of public characters and measures, I think no action for libel ought to be permitted: but if it must, the accused should have the right of producing, unchecked by the court, any evidence whatever, that he may think will prove his case; and the jury should have the right of determining what weight is due to it.

After all, the most cautious must acknowledge, that public officers ought to be amenable to those they serve; and that public opinion is a salutary check on those who guide the helm of state. What should we think of an agent who forbad his employers to examine his accounts, or scrutinize his conduct, in cases where their interest was materially concerned, and respecting the business they had entrusted to his care?

Every page of history attests the proneness of mankind to abuse power; and if the conduct of governors be not to be open to investigation and reprehension, room is left for the introduction of every abuse. What avails a good constitution, if the spirit of it may be counteracted, and its essential principles infringed with impunity, by those who administer it? Nor are the people in any country addicted to suspicion or unreasonable complaint; on the contrary, it is well known they will bear much, before they have recourse to opposition....

[For more of Mr. Cooper's portion of the essay, and for Mrs. Priestley's, please see this PDF.]

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Will ObamaCare Expose Tax Records?

Declan McCullagh reports on draft health care reform provisions that could require the disclosure of federal tax information.

Section 431(a) of the bill says that the IRS must divulge taxpayer identity information, including the filing status, the modified adjusted gross income, the number of dependents, and "other information as is prescribed by" regulation. That information will be provided to the new Health Choices Commissioner and state health programs and used to determine who qualifies for "affordability credits."

Section 245(b)(2)(A) says the IRS must divulge tax return details -- there's no specified limit on what's available or unavailable -- to the Health Choices Commissioner. The purpose, again, is to verify "affordability credits."

Section 1801(a) says that the Social Security Administration can obtain tax return data on anyone who may be eligible for a "low-income prescription drug subsidy" but has not applied for it.

As McCullagh notes, these provisions are intended to prevent fraud and ensure that only those who are eligible receive certain subsidies.

When he initially wrote the column, McCullagh wondered where information privacy advocates were on the issue. An update at the end now reports that at least one such organization, the Electronic Privacy Information Center, would oppose Section 431(a) as drafted.

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Biofuel Bubble Bursts:

The WSJ reports that the biofuel industry is introuble, billions in federal subsidies notwithstanding. Biofuels received greater subsidies than any other fuel source in 2007, according to the Energy Information Administration, but it was apparently not enough.

Domestically produced biofuels were supposed to be an answer to reducing America's reliance on foreign oil. In 2007, Congress set targets for the U.S. to blend 36 billion gallons of biofuels a year into the U.S. fuel supply in 2022, from 11.1 billion gallons in 2009. That would increase biofuels' share of the liquid-fuel mix to roughly 16% from 5%, based on U.S. Energy Information Administration fuel-demand projections.

Corn ethanol, which has been supported by government blending mandates and other subsidies for years, has come under fire for driving up the price of corn and other basic foodstuffs. While it will continue to be produced, corn ethanol's dominant role in filling the biofuels' blending mandate was set to shrink through 2022. Cellulosic ethanol, derived from the inedible portions of plants, and other advanced fuels were expected to surpass corn ethanol to fill close to half of all biofuel mandates in that time.

But the industry is already falling behind the targets. The EPA, which implements the congressional blending mandates, still hasn't issued any regulations to allow biodiesel blending, though they were supposed to start in January. The mandate to blend next-generation fuels, which kicks in next year, is unlikely to be met because of a lack of enough viable production.

"I don't believe there's a man, woman or child who believes the industry can hit" the EPA's 2010 biofuel blending targets, says Bill Wicker, spokesman for Sen. Jeff Bingaman of New Mexico, chairman of the Senate Energy Committee.

Biodiesel producers are scrambling for yet more government support to bail them out, and are likely to get a receptive hearing. Farm-state senators are calling for action, and the Administration promises more grants and loans for "green" biofuel projects -- and corn barrel politics continue.

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Nova Caesarea:

Yesterday, I asked, "Which state's name might indirectly flow from the name of an ancient political figure?," noting that the etymology is in some dispute. My answer is New Jersey; the island of Jersey has been said to be a derivation of the supposed Roman name for it, which was Caesarea. New Jersey was sometimes referred to in the colonial era as Nova Caesarea, an the supposed name of old Jersey was sometimes recalled. John Seally's 1787 Complete Geographical Dictionary takes that view.

The matter is controversial; the Online Etymological Dictionary, for instance, reports that Jersey is "said to be a corruption of L. Caesarea, the Roman name for the island (or another near it), infl. by O.E. ey 'island,'" but is "probably in fact a Viking name (perhaps meaning 'Geirr's island')." Nonetheless, the Caesar link was at least much supposed during the 17th and the 18th centuries, and strikes me as at this point credible even if contested.

Congratulations to commenter Chuck the Guest, who was the first to give this answer on the earlier thread.

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NEA conference call directs artists to push the Administration's agenda on health care and the environment.--

At Big Hollywood Patrick Courrielche has a disturbing account of the politicization of the NEA and the attempt to convert it into a partisan body to advance controversial political positions favored by the current administration:

I was invited by the National Endowment for the Arts (NEA) to take part in a conference call that invited a group of rising artist and art community luminaries “to help lay a new foundation for growth, focusing on core areas of the recovery agenda - health care, energy and environment, safety and security, education, community renewal.”

Now admittedly, I’m a skeptic of BIG government. In my view, power tends to overreach whenever given the opportunity. It’s a law of human nature that has very few exceptions. That said, it felt to me that by providing issues as a cynosure for inspiration to a handpicked arts group - a group that played a key role in the President’s election as mentioned throughout the conference call - the National Endowment for the Arts was steering the art community toward creating art on the very issues that are currently under contentious national debate; those being health care reform and cap-and-trade legislation. . . .

On Thursday August 6th, I was invited by the National Endowment for the Arts to attend a conference call scheduled for Monday August 10th hosted by the NEA, the White House Office of Public Engagement, and United We Serve. The call would include “a group of artists, producers, promoters, organizers, influencers, marketers, taste-makers, leaders or just plain cool people to join together and work together to promote a more civically engaged America and celebrate how the arts can be used for a positive change!”

I learned after the conference call that there were approximately 75 people participating, including many well respected street-artists, filmmakers, art galleries, music venues, musicians and music producers, writers, poets, actors, independent media outlets, marketers, and various other professionals from the creative community. . . .

There is no shortage of problems within the art community that the NEA could tackle. Museums across the country have been hit hard by the financial crisis. Their trusts and portfolios have seen massive declines. Donations, attendance, and memberships are down. Many have had to reduce exhibition hours due to staffing and budget reductions. And countless art galleries, the lifeblood and revenue stream for many artists, have closed or are on the brink of closure. Rallying the art community around these issues seems a more appropriate use of its resources.

I’m not a “right-wing nut job.” It just goes against my core beliefs to sit quietly while the art community is used by the NEA and the administration to push an agenda other than the one for which it was created. It is not within the National Endowment for the Arts’ original charter to initiate, organize, and tap into the art community to help bring awareness to health care, or energy & environmental issues for that matter; and especially not at a time when it is being vehemently debated. Artists shouldn’t be used as tools of the state to help create a climate amenable to their positions, which is what appears to be happening in this instance. If the art community wants to tackle those issues on its own then fine. But tackling them shouldn’t come as an encouragement from the NEA to those they potentially fund at this coincidental time.

And if you think that my fear regarding the arts becoming a tool of the state is still unfounded, I leave you with a few statements made by the NEA to the art community participants on the conference call. “This is just the beginning. This is the first telephone call of a brand new conversation. We are just now learning how to really bring this community together to speak with the government. What that looks like legally?…bare with us as we learn the language so that we can speak to each other safely… “

Is the hair on your arms standing up yet?

This is precisely the sort of thing that I feared when last year I blogged about private associations being brought under state control. I warned last summer:

Unlike some European systems of the past two centuries, the American tradition is for individuals to form their own diverse communities and for each community to govern itself to the extent possible. Universal national service seems to reverse the direction of this relationship: its goal is to use the government to transform people to fit within the government’s vision of what’s important and how one should serve. Senator Barack Obama makes that government direction clear, promising us that his administration “will direct that service to our most pressing national challenges,” eschewing the traditional American approach of having the government take its direction from the diverse choices of its people.

As de Tocqueville understood, voluntary associations are valuable not merely on account of what they accomplish, either for participants or for others, but also because they establish cultural and political forces in society independent of government. In modern society, and perhaps especially in America, each individual stands alone as an independent citizen in relation to the state, and individuals are therefore peculiarly dependent on voluntary associations to ensure that the state does not acquire a monopoly of cultural and political influence. Voluntary associations help to protect us from what de Tocqueville called “the tyranny of the majority.”

In Mr. Obama’s vision of voluntary organization, however, the government would develop, coordinate, and focus the efforts of private individuals and their associations, which thus would lose their independence and much of their capacity to offer alternatives to the state and its vision of life. Indeed, far from challenging the state and holding it accountable, morally or politically, many private associations would become aligned with the state. Rather than being alternatives to government, they would become its instruments. . . .

By bringing voluntary charitable activity under government control and by presenting his scheme as a “civilian national security force,” Mr. Obama is breaking down the barriers between private and public life, between individual choice and government programs, between childhood education and adult employment, and between the diversity of freely chosen efforts on behalf of one’s neighbors and subservience to the government’s vision of the good.

As the NEA said in the conference call reported above, "This is just the beginning."

On September 11 and September 12 we might start hearing a lot about the administration's plans to implement the Edward M. Kennedy Serve America Act by inducing schools to hire "service-learning coordinators" (essentially community organizers interested in education), monitoring and deciding which charities will qualify for free labor, fulfilling Obama's campaign promise to "direct that service to our most pressing national challenges," and changing the nature of primary, middle, and high school education in the United States.


An Interesting Consequence of United States v. Comprehensive Drug Testing: Am I right that the Ninth Circuit's Fourth Amendment decision in United States v. Comprehensive Drug Testing has rendered every computer search warrant that has ever been obtained — and every offsite search — unconstitutional? I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards.

  I suppose it's possible that the Ninth Circuit will create a new retroactivity jurisprudence to go along with its new Fourth Amendment jurisprudence. If so, the Ninth Circuit might hold that its new rules don't apply to past warrants or past searches that have occurred. But unless or until it does, I would think that every criminal case in the Ninth Circuit with a search warrant involving computers has just been given a new suppression issue: None of the cases will have followed the protocols that the Ninth Circuit just said the Fourth Amendment requires, as no one could have predicted these new protocols.

  Or perhaps the Ninth Circuit will conclude that there is no suppression remedy for past searches that violated the new requirements? This is really new territory, so it will be interesting to see how it plays out. I suspect we'll find out soon, as there are a lot of these cases.
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Wednesday, August 26, 2009

The UN's Arms Trade Treaty: A Dangerous Multilateral Mistake in the Making:

That's the title of an excellent new Issue Backgrounder from the Heritage Foundation, by Ted R. Bromund and Steven Groves. The authors detail numerous problems with this Treaty, which is currently being drafted at the United Nations.

My own critique of the Treaty--based on case studies of Zimbabwe and DR Congo--is that the Arms Trade Treaty is almost certain not to make embargos against human rights violators more effective.

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How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches: I think the best way to understand today's remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches. Chief Judge Kozinski's opinion created an elaborate statute-like new regime to make sure the government acts like there is no plain view exception. The decision is a workaround that effectively ends plain view for computer searches by making sure the government will never collect electronic evidence in plain view in the first place. In this post, I want to explain the basic problem and how the Ninth Circuit took some very unusual steps to solve it.

I. Particularity and Plain View

  First, some context. The Fourth Amendment requires that warrants must particularly describe the place to be searched and the items to be seized. This co-called particularity requirement is designed to limit the scope of searches: Instead of conducting broad, free-ranging searches, the police have to only look in one place for only what the warrant says. One key exception to this is the plain view exception. If the police come across other evidence not described in the warrant, they can seize that evidence as well as long as it is "immediately apparent" that the item is evidence of a crime. The Supreme Court has justified this added power on the ground that if the police are lawfully in a place, they see something that is evidence, and it is so clear that the item is incriminating, they could just get a warrant at that stage anyway. Given that, the thinking goes, it makes sense to let them take it at the time rather than wait for another warrant.

  Critics of the plain view exception argue that it gives the police too much power to conduct general searches. According to critics, the police would say they are searching for evidence A when really they want to poke around for evidence B, C and D, which they suspect is there but don't have enough cause to get a warrant. That would be bad, as it would no longer ensure narrow searches. The Supreme Court has responded that this is unlikely for two reasons. First, the particularly requirement makes this unlikely because it requires police have to conduct narrow searches. If the police they are only conducting narrow searches, they shouldn't have an incentive to look for other stuff. Second, the police can only search where the evidence described in the warrant physically could be located. They can't search in narrow spaces for big things, for example. According to the Court, these realities allow the plain view exception despite fears that it will allow general searches.

II. How Computers Change Particularity and Plain View

  Computers change that. Computer evidence can be located anywhere on a very small storage device, and there can be no obvious shortcut for how to find the evidence sought. As a result, a search for evidence means that no place on the computer can be ruled out: A comprehensive search for the evidence in the warrant will bring almost everything into plain view. Further, electronic storage devices contain an incredible amount of information, and with changing technology, tend to store more and more every passing year. Suddenly the particularity requirement doesn't do the work it once did; suddenly the reasons for allowing the plain view exception don't really apply. As I argued in a 2005 article, Searches and Seizures in a Digital World:
For a variety of reasons, computer technologies may allow warrants that are particular on their face to become general warrants in practice. Computers tend to play an ever greater role in our lives as computer technologies advance, as they are likely to record and store increasingly detailed pictures of our daily experience. At the same time, the particularity requirement does less and less work as the storage capacity of computer devices gets greater and greater. Even if the property described in the warrant is a very specific file or type of information, locating that information may require a broad search for technical reasons.
  The question is, what to do about it? In my article, I discussed a few different possibilities and ended up concluding that eventually courts will have to narrow the plain view exception for computers:
the best way to neutralize dragnet searches is to rethink the plain view exception in the context of digital evidence. The dynamics of computer searches upset the basic assumptions underlying the plain view doctrine. More and more evidence comes into plain view, and the particularity requirement no longer functions effectively as a check on dragnet searches. In this new environment, a tightening of the plain view doctrine may be necessary to ensure that computer warrants that are narrow in theory do not become broad in practice.
  Eventually, I argued, the solution will be to abolish plain view for computer searches entirely. It was too early to take such a step, I argued. But "in time, abolishing the plain view exception may best balance the competing needs of privacy and law enforcement in light of developments in computer technology and the digital forensics process."

III. Understanding United States v. Comprehensive Drug Testing

  The Ninth Circuit did not come out and directly abolish plain view for computer searches in today's case. They really couldn't do that, as there would have been no case or controversy: The search hasn't even happened yet, at least as far as I can tell, so there isn't yet any evidence to exclude and any discussion of plain view directly would have just been dicta.

  Rather than wait until a search has occurred, and then announcing such a dramatic shift then, the EZ Rider & Co. did one better: They created a set of prophylactic rules that has the effect of banning plain view through ex ante restrictions. The Ninth Circuit took a truly remarkable step: It ordered the government to behave exactly as it would behave if the plain view exception did not exist. The court wrote out a list of ways that the government would act if there were no plain view exception, and then ordered the government to follow those rules as a condition of getting the warrant in the first place. The plain view exception is gutted by ensuring the government will never be in a position to try to offer the evidence to a court in the first place.

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Which State's Name Might Indirectly Flow from the Name of an Ancient Political Figure?

Note that the etymology is in some dispute. Remember, we're talking an ancient figure, and not King George or the like.

Related Posts (on one page):

  1. Nova Caesarea:
  2. Which State's Name Might Indirectly Flow from the Name of an Ancient Political Figure?
46 Comments

[Elizabeth Ryland Priestley, guest-blogging, August 26, 2009 at 5:17pm] Trackbacks
On the Propriety and Expediency of Unlimited Enquiry:

There is perhaps no political question so important to the interests of society, as that of the operation of unrestrained discussion on all subjects whatever. Governors have, at all times, and in all places, been prone to discountenance it on political questions, and the clergy have induced the same proneness on religious topics. But the situation either of political rulers, or the adherents of clerical hierarchy, by no means secures their judgment from bias, and implicit confidence is hardly due to opinion from this quarter. If, upon investigation, it should appear, that almost every valuable improvement in human society, has originated in discussion, partial and limited as it has hitherto been, and that it is the only permanent source, whence all future improvements in knowledge, virtue or happiness, can be reasonably expected, we shall do well, sedulously to watch over and preserve it, as the most important and inestimable of our rights.

The great object of society -- that object for which alone government itself has been instituted, is the general good. But to obtain this, we should understand in what it consists; and discover, so far as we can, what are the best means of securing it. This cannot be known by intuition, but must be the fruit of knowledge founded on experience. All reasoning is deduced from facts: we all agree with the poet -- “How can we reason but from what we know?”

For judgment, expectation, prediction -- every conclusion whatever, can be formed only from what has been previously observed and known. Whence has the present age derived its superior wisdom, and superior accommodations to remoter periods, but by improving on the practice, and reasoning from the experience, of former times? Natural intellect is not more vigorous or more acute now, than it was in the infancy of society. It has been the multiplication of facts alone, those sole materials of knowledge, that has conferred this pre-eminence.

Most of the evils, indeed all the political evils of life, may be ascribed to ignorance. This prolific source of mischief and misery, has made the mass of mankind, in all countries, insensible to their own welfare, and subservient to the caprice, resentment or ambition of the few; and rendered the page of history little more than the chronicle of war, oppression and calamity. Even virtue, or the active desire to do good, unless directed by knowledge, may produce much evil. Of this, the long and horrid catalogue of religious persecutions affords abundant proof.

It appears, therefore, that knowledge is the most important instrument of human welfare. But it can exist in an eminent degree, and on a stable foundation, only by discussion; and its increase and extension will be proportioned to the freedom of discussion.

Knowledge is valuable as it furnishes the means of just conclusions: but as the conclusions from moral and political (I may add religious) propositions, are not self-evident, the more they are discussed and examined, and the more various the points of view in which they are considered, the greater is the probability that truth will be the result: there is no exploded error, however absurd and pregnant with mischief, that has not been regarded in its day as a valuable truth, and tenaciously defended.

It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on this unlimited right of enquiry: that publications exciting to insurrection or immorality for instance, ought to be checked or suppressed. Not to dwell upon the difficulty of ascertaining the proper boundary of such restrictions, it may be observed, that opinions palpably false and of bad tendency, will never be generally received, and their promulgation must eventually do good. The mass of talents, of knowledge, and of respectability will, in every country, from interest as well as principle, be on the side of good order and morality. There can be few who, from ignorance or design, will be tempted publicly to support opinions inimical to the general welfare; and in cases where it may occur, the investigation that will ensue, and the confutation of such doctrines however plausible (which in the end must take place if they really are unfounded and of mischievous tendency) will establish truth more decisively, than could be effected in any other way. If they appear insidious and less obviously false, we shall do well to remember, that false opinions cannot be suppressed but at the risk of suppressing those that are valuable; for it is only after discussion that their nature and tendency can be known and appreciated. The doctrines of Aristotle have been regarded as inviolable, and the opinions which Galileo was compelled to recant, are now considered as established truths.

It may well admit of question, whether it be safe to entrust any government with a power of this kind. It is one that the public cannot often require to be exercised, but which there may be frequent temptations to abuse; and if the right of government to proscribe the avowal of one opinion be admitted, absolute power is in its hands; for the principle once conceded, may be extended to every other which insidious despotism may think fit to hold out as dangerous.

The only test by which opinion can be tried, is human reason founded upon human experience, and this can perhaps be exercised with a better prospect of just conclusions, by the people than by their rulers. The immediate interest of the people is to discover and promote the general good: that of governors to extend their own power, or preserve it by the continuance of the present order of things. Should false opinions be propagated, is it probable that the majority of the people (especially if they be accustomed to free enquiry) will be misled by them, and that persons in power only will have the acuteness and discernment to detect their fallacy? But were even this the case, surely the friends of the existing establishment, with truth on their side, and the collateral aids of wealth and power, will have no difficulty in confuting them. It is too often the interest of men in power to discourage discussion, and that in proportion as their conduct is faulty; and it may be taken for granted, that the disposition to discourage it, is always a just ground of suspicion. But the people have nothing to dread from investigation: they can derive only advantage from it. Political institutions, moreover, having the most extensive influence on human welfare, and being in their own nature difficult to change or modify, it seems that latitude of discussion is more necessary on this than on any other subject, error having in this case a greater chance of being perpetuated....

The restraints imposed on freedom of speech and writing, are evidently calculated to produce the mischief they ostensibly aim to destroy. While one party assumes a right to suppress the opinions of those who differ from them, and the other experiences a degrading and unjustifiable subjection -- violence, ill-will, and rancour must subsist. Governments tenacious of an unaltered existence, would perhaps do well to consider that these restrictions serve only to excite more ardent opposition, and that the irritation of restraint carries men beyond what in other circumstances, they would have thought of. Men are proverbially careless of advantages always in their power; but to raise any object in their estimation, render it difficult of attainment, and they will desire it with increased ardour, and pursue it with ten-fold activity. Mere liberty of investigation will not induce this rancourous opposition; the ebullitions of party warmth will evaporate of themselves if left to themselves: but when once the spirit of enquiry has gone abroad, prohibitions, penalties, and all that fear may dictate to preserve power, are so many manifestations of impotence, and operate only to animate research. If, indeed, it were possible entirely to suppress communication of sentiment, the desired end might be accomplished: men would then cease to think, and the human mind would soon degenerate to a level with the brutes....

Free investigation gave birth to American independence; and is peculiarly congenial with the spirit of a constitution, that on the wise and animating idea of the perfectability of human nature, has made a periodical provision for peaceful and gradual improvement in its political institutions: and the longer impartial discussion shall precede the period of revision and reform, the more secure shall we be of the adoption of wise and well digested plans....

[For more of Mrs. Priestley's portion of the essay, and for Mr. Cooper's, please see this PDF; I will also blog more of the Cooper portion tomorrow. -EV]

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Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?: The Ninth Circuit's new computer search and seizure decision is particularly interesting because of the way it empowers magistrate judges. It envisions magistrate judges as activity overseeing the computer search warrant process, and in particular having the power and duty not to sign warrants unless the judge is satisfied that the warrant will be executed in a way that sufficient protects privacy. The opinion goes out of its way to task magistrates with the job of doing what they need to do to protect privacy:
[W]e must rely on the good sense and vigilance of our magistrate judges, who are in the front line of preserving the constitutional freedoms of our citizens while assisting the government in its legitimate efforts to prosecute criminal activity. Nothing we could say would substitute for the sound judgment that judicial officers must exercise in striking this delicate balance.
  Among the new powers that the Ninth Circuit today specifically bestowed on magistrate judges is this one:
The government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.
(emphasis added). This raises a very important question that the Ninth Circuit doesn't address, perhaps because it never occurred to the judges on the en banc court: Does a magistrate judge have the power to refuse to sign a warrant that is based on probable cause and is constitutionality particular but that the magistrate judge fears would be executed in a way that is unconstitutional or otherwise too invasive?

  The precedents I am aware of suggest that the answer is "no." See Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173, 1196 (1987) ("The few cases on [whether a magistrate judge can refuse to issue a warrant on the ground that the search may be executed unconstitutionally] hold that a judge has a 'ministerial' duty to issue a warrant after 'probable cause' has been established."); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 613 (1st Cir. 1979) (noting the limited role of magistrate judges in issuing search warrants); Ex Parte United States, 287 U.S. 241, 250 (1932) (holding that a magistrate judge did not have discretion to refuse to issue an arrest warrant after the the grand jury returned an indictment, and noting that "the refusal of the trial court to issue a warrant . . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls little short of a refusal to permit the enforcement of the law.").

  I think these authorities make a lot of sense. Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant. Otherwise you end up with a tricky situation. Imagine a magistrate refuses to sign a warrant unless the government makes promises as to how the warrant will be executed. On one hand, if the government's promises are enforceable, then the magistrate judge gets to determine the Fourth Amendment as she pleases regardless of what the district judges, circuit judges, and Supreme Court Justices say the law actually is. On the other hand, if the promises the government makes are unenforceable, then you end up with the very awkward situation of the government making a promise to a federal judge and then feeling free to break it.

  Neither of these options are very good ones. But in my view neither is necessary, either: I don't think magistrate judges have the power to condition signing warrants on grounds other than probable cause and particularity. The constitutionality of how the warrant is executed is a question for judicial review after the warrant is executed, not negotiations with a magistrate beforehand. At least that's the traditional understanding: It appears to be no longer the law in the Ninth Circuit as of this morning.
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New Ad from the Foundation for Individual Rights in Education,

in the U.S. News & World Report's America's Best Colleges issue. Sweet.

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Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure: The Ninth Circuit's new computer search and seizure decision in United States v. Comprehensive Drug Testing is a truly astonishing decision. The majority opinion, by Judge Alex Kozinski, announces a laundry list of brand-new rules, introduced with no citations to any authority, that henceforth the government must follow when executing warrants for digital information. I can't recall having read anything quite like it, although it does bring to mind Miranda v. Arizona.

   Judge Kozinski helpfully sums up the new rules the Ninth Circuit has announced as follows:
When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.
  I should add that I think these rules are being announced as Fourth Amendment rules, although at first blush that's not entirely clear: The opinion is remarkably light on the sources of its authority.

  Also, I should add that I'm not sure what most of Judge Kozinski's new requirements actually mean. To pick one example, what does it mean to "waive plain view"? Is the idea that the government promises not to rely on the Fourth Amendment's plain view doctrine to admit evidence out of the scope of the warrant? I have never seen anything like that, and I don't know if such a waiver is even enforceable.

  I'll probably blog a lot about this case over the next few days: This is the most free-wheeling, "look ma no hands" legal decision I've read in a long time, so there is a lot to digest.
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Ninth Circuit Hands Down En Banc Decision in United States v. Comprehensive Drug Testing: The new opinion, on how the Fourth Amendment applies to the search and seizure of a computer in the context of an investigation into steroids in baseball, is here. I'm reading it now and will post some thoughts as I go through it.
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2.5 Million Tons of Manure + 60,000 Gallons of Urine:

An interesting item from Horsecars: City Transit Before the Age of Electricity, by John H. White, Jr.:

In 1881, New York City streets received 2.5 million tons of manure and 60,000 gallons of urine.

Any thoughts on this?

UPDATE: Bing bing bing! Johan Bakker (in an e-mail) and Rick Felt (in a comment) got it at pretty much the same time, though Felt's was the sixth comment. (Got the rest of you. Bwa ha ha ha.) This quote can't possibly be right, as a quick bit of arithmetic reveals: 2.5 million tons is roughly 5 billion pounds, and 60,000 gallons is roughly 0.5 million pounds. Can a horse's manure exceed its urine by a factor of 10,000? Surely not.

So when I first noticed this problem -- as I was copying and pasting the quotation into a draft article of mine -- I asked the UCLA Law Library to track down some other data for me. And sure enough, here's what I get from James J. Flink, The Car Culture 34 (MIT Press, 1975) (though unfortunately without a specific citation): "In New York City alone at the turn of the century, horses deposited an estimated 2.5 million pounds of manure and 60,000 gallons of urine on the streets every day."

Now that seems much more plausible, with manure exceeding urine by a factor of 5 rather than 10,000. I'm not a horse expert, or a historian of New York horse transportation, so I can't be sure that this is right. But it certainly seems less likely to be wrong than the line that I initially quoted.

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An Interesting Admission from HRW's Ken Roth:

In the past, whenever Human Rights Watch spokespeople have been asked about their seemingly obsessive and disproportionate focus on Israel, the response has been that HRW holds every country to exactly the same standards. HRW does not, they claim, disproportionately focus on Israel, and if it seems that Israel is receiving disproportionate attention, it's because Israel has been engaged in so many high-profile human rights violations.

But here's Ken Roth, director of Human Rights Watch, in Tablet, on why HRW has issued report after report on the Gaza war: "But if the question is, 'Why are we more concerned about the [Gaza] war rather than on other rights abuses?' Well, we've got to pick and choose-we've got finite resources."

So it turns out, HRW doesn't treat all countries equally, and does disproportionately focus on Israel. Which begs the obvious question: If HRW is picking and choosing based on limited resources, why pick and choose Israel? Not only are there, by any reasonable human rights standards, much worse regimes both locally in the Middle East and around the world, but unlike countries like Saudi Arabia, Iran, Syria, and so on, Israel has its own domestic human rights groups that are perfectly legal and well-heard in public discourse. It hardly seems logical that Israel is the best choice for HRW's limited resources, unless its staff happens to be ideologically hostile to Israel apart from specific human rights concerns--which, as I've documented in several posts, linked below, it is!

Not irrelevantly, in the same article, HRW Middle East Director Sarah Leah Whitson--who, remember, is a huge fan of anti-Israel activist, and frequent HRW critic Norman Finkelstein, whom she goes out of her way to appease--once again shows her contempt for her pro-Israel critics: "I'm not going to do something to appease people who have no interest in the truth, or who are only screaming about Israel."


Senator Edward Kennedy, Dead at 77: CNN reports: "Massachusetts Sen. Edward Kennedy, the patriarch of the first family of Democratic politics, died Wednesday at his home in Hyannis Port, Massachusetts, after a lengthy battle with brain cancer. He was 77." May he rest in peace.

Tuesday, August 25, 2009

[Thomas Cooper, guest-blogging, August 25, 2009 at 5:51pm] Trackbacks
Address to the Readers of the Sunbury and Northumberland Gazette, June 29, 1799:

Having no correspondence to communicate, it is my duty to fill up the vacant columns of the week as well as I am able; and as this is the last opportunity I shall have to intrude on the patience of the public in the capacity of Editor, I shall dedicate the space that is left to a subject of some importance.

There is a party in this country accused of an indiscriminate opposition to the measures of government; who in their turn insinuate an indiscriminate support of every measure calculated to increase the power of the Executive at the expence of the interest of the country. Like all other party accusations, these are doubtless too violent on both sides; but I cannot help thinking that of late years, measures have been adopted and opinions sanctioned in this country, which have an evident tendency to stretch to the utmost the constitutional authority of our Executive, and to introduce the political evils of those European governments whose principles we have rejected. I do not feel myself in any degree authorized to reflect on the motives or undervalue the judgment of the gentlemen, whose conduct and opinions I disapprove. With superior talents, and more ample means of information, they may well be in the right: But these do not confer infallibility; and therefore the tendency of the measures pursued, however praise worthy the motives which have led to them, is a fair object of decent and temperate discussion.

I can best illustrate my meaning by supposing a case. Let me place myself in the President’s chair, at the head of a party in this country, aiming to extend the influence of the governing powers at the expence of the governed; to increase the authority and prerogative of the Executive, and to reduce by degrees to a mere name, the influences of the people. How should I set about it? What system should I pursue?

1st. As the rights reserved by the State Governments and the bounds and limits set by the Constitution of the Union, are the declared barriers against the encroachments of entrusted power, my first business would be to undermine that Constitution, and render it useless, by claiming authority which, though not given by the express words of it, might be edged in under the cover of general expressions or implied powers — by stretching the meaning of the words used to their utmost latitude, — by taking advantage of every ambiguity — and by quibbling upon distinctions to explain away the plain and obvious meaning. It would be my business to extend the powers of the Federal Courts and of Federal Officers — to encroach upon the State jurisdictions — to throw obloquy on the State Governments as clogs upon the wheel of the General Government — for that purpose to promote a spirit of party among them, and subject to accusations of disaffection those who were opposed to the measures I would pursue. In addition to this I would now and then exercise trifling acts of authority not granted by the Constitution, under some undefined notion of prerogative. If by such means one encroachment should be made good, it would be a precedent for another, until the public by degrees would become accustomed and callous to them.

2. My next object would be to restrict by every means in my power the liberty of the press. For the free discussion of public characters is too dangerous for despotism to tolerate. Hence I would multiply laws against libel and sedition, and fence round the characters of the officers of government by well contrived legal obstacles. Whatever should tend to bring them into contempt should be sedition, however contemptible or reprehensible they might be. Hence too, I would impress the idea that all who were opposed to my measures were enemies of the government, that is (in my construction) of their country. It should be the business of my partizans to inculcate this, and cry down all such persons as dangerous and seditious, as disturbers of the peace of society, and desirous of overturning the Constitution. The obloquy induced by these charges, dwelt upon in the public prints under my controul, and vociferously urged by the dependants of office in private conversation, would make opposition to my measures obnoxious and dangerous, and suppress all political conversation.

For the rest of the address, please click here, and go to page 3.

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Congratulations to Our Own David Bernstein and Todd Zywicki,

who have been named Foundation Professors at GMU School of Law!

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Can Anyone Explain Freddie and Fannie to Me These Days?

The Washington Post's Zachary Goldfarb notes in a story today that Fannie and Freddie shares - yes, despite being in conservatorship (receivership by any other name) by the US government -the common stock still trades, although the New York Stock Exchange has threatened to de-list - have surged in active trading in the past few months. (The story has a couple of good graphs as well as excellent reporting.) (Update: Interesting series of posts on exactly this subject at Bronte Capital. Link to post I and then see sidebar for rest.)

On Monday, Fannie Mae jumped 41.7 percent, to $1.70 per share, with nearly 824 million shares bought or sold during regular trading hours. Freddie Mac rose 18.5 percent, to $2.05 per share, with almost 384 million shares trading hands. Activity in the two companies' stocks accounted for nearly a fifth of trading on the New York Stock Exchange on Monday, when 6.3 billion shares were bought and sold.

This presents something of a question, given the economic fundamentals of the two companies. In terms of the fundamentals of each company, well, Freddie has announced it won't need a new round of government financing (but I have questions still about the longer run); Fannie sought billions more. In terms of the ability of common shareholders to access any improvements in the company, well, they stand a long way behind other parties, starting with the USG; don't hold your breath. As Goldfarb says,

The government took a nearly 80 percent stake in each company, but left the stock outstanding. The shares of each settled below $1, and the New York Stock Exchange warned the firms that they'd be removed from the exchange if their stock did not rise above that threshold.

In recent months the firms' shares have risen steadily with the overall market. There have been occasional pieces of good news. For instance, Freddie Mac said earlier this month that it does not need more government aid for now, after receiving $50 billion since November.

Still, most analysts say that because the companies owe the government far more than they are able to generate in profits, the real value of the shares is zero.

So why the rush to buy? The obvious explanations are: (1) the investors know something the rest of the world, including the experts, don't know, (2) irrational noise trading, mostly by retail investors and day traders playing with trends, or (3) risky but not necessarily in all circumstances irrational bet on the political economy of the GSEs rather than their economic fundamentals.

The last two, particularly, are not inconsistent with each other. Moreover, what constitutes efficient processing of information means something different in markets that are driven by politics and political considerations than otherwise; rather than focusing on the quality of the underlying portfolio, one concentrates upon the Mind of Barney Frank, which requires a different sort of inputs altogether.

But Goldfarb has been writing excellent coverage of the big picture questions of the future of Fannie and Freddie as well. They were conspicuously not discussed in the recent Treasury White Paper on financial reform - but then Goldfarb noted a flurry of inside comments on what might happen, rumors later denied by the administration. It does not appear that a final resolution of them will be proposed before the beginning of 2010. And yet, in the meantime, Ginnie Mae has picked up much of the slack, along with slack underwriting standards for mortgages to rival those of the meltdown, and Fannie and Freddie are still being used to prop up the market. (Update: Further to one of the comments, see this WSJ piece for an entry into the Ginnie Mae question.) It matters hugely to the shape of the mortgage and securitization markets what the long term roles, if any, of Fannie and Freddie will be.

The general possibilities, in any case, are what they have always been - (1) fully privatize; (2) fully convert to being a full government agency (again); or (3) the mixed GSE format that Fannie and Freddie have now. (There is a further question, on any of those scenarios, as to where their portfolios, meaning the toxic parts, winds up.) The answer can't wait forever insofar as it is a core component to getting securitization markets moving at a more efficient level; perhaps the worst result is no real policy except by default, in which no true decision is made with a restructuring of regulation, but just ad hoc drifting, using the convenience of the GSEs for short term government policy and/or Congressional political desires, and building up new long term risks.

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Maryland Vaccines and Autism Ruling:

I just noticed that last Spring's Maryland Court of Appeals (Maryland's highest court) ruling tossing out a plaintiff's claim that vaccines caused his autism and mental retardation has an extensive quotation from an article of mine on the scope of the Frye general acceptance test. While I doubt my article had any effect on the outcome of the case, I'm very proud of whatever limited role it played in combating such pernicious nonsense.

UPDATE: By the way, the court cites a BNA reprint version of the article. The original is Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics 385 (2001).

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Leon Trotsky Was a Really Bad Man:

In today's Wall Street Journal, historian Lesley Chamberlain reviews a recent biography of Leon Trotsky and concludes that he "was not a bad man:"

We are left weighing a multiple ­tragedy, of a man so loyal to an ideology he died for it; of an ideology that in one form or another killed ­millions; and of a 20th century in which political ­radicals world-wide called themselves Trotskyists and believed that Lenin was good and Stalin bad, that even if the Soviet Union was a degenerate workers' state, the real thing could be established elsewhere. Trotsky had people killed. But . . . [he] was not a bad man.

Well, let's see. Trotsky was responsible for the mass murder of hundreds of thousands of innocent people, helped mastermind the establishment of one history's worst totalitarian regimes, and broke with Joseph Stalin in the 1920s in part because he thought that Stalin wasn't going far enough in extending Soviet totalitarianism at home and exporting it abroad. Other than that, he was a helluva guy. If that record isn't enough to qualify you as a "bad man," I don't know what is.

Chamberlain's piece does imply two possible justifications for the claim that Trotsky wasn't so bad. First, like other Trotsky defenders, she puts a positive spin on his opposition to Stalin's show trials of the 1930s. However, as I explained in this post, Trotsky had no objection to political repression as such; when in power, he practiced it himself on a massive scale. He merely objected to the persecution of his own followers and other Soviet communists who had fallen out of favor with Stalin. Trotsky supported the murder or imprisonment of non-communists, including even non-communist socialists.

She also implies that Trotsky, "a man so loyal to an ideology he died for it," may not have been so bad because he and his followers believed in his cause and the rightness of their actions. By that standard, of course, virtually every mass murderer can be excused. Adolf Hitler believed that he was doing the right thing just as much as Trotsky did.

Most of the above may seem obvious. There would be no need to even bring it up if it weren't for the fact that some prominent Western intellectuals continue to defend Trotsky, (as well as some other communist mass murders, such as Che Guevara).

Ever since Stalin and the USSR lost their luster in the eyes of most Western leftists, some of them have searched for alternative communist heroes supposedly untainted by Stalinism. Thus, the continued lionizing of people like Trotsky and Che Guevara, and (in the 1960s) Mao and Ho Chi Minh. Unfortunately, their alternative versions of communism turn out to be not much better than the Soviet original, and in some cases even worse. Chamberlain is a serious historian who has written interesting books on Soviet repression, such as this one. The fact that she could write a review like this and publish it in the Wall Street Journal suggests that the persistence of Trotsky apologism isn't limited to fringe elements of the far left. I doubt that Chamberlain is one of the people who still yearn for a kinder, gentler communist hero to worship. But she echoes some of the arguments of those who do.

Related Posts (on one page):

  1. Leon Trotsky Was a Really Bad Man:
  2. A Small Positive Effect of Trotskyism:
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Tax Penalties as Health Reform:

James Peaslee uncovers another goody buried in the House health care reform bill: Strict liability for accidental underpayment of income taxes.

Under current law, taxpayers who lose an argument with the IRS can generally avoid penalties by showing they tried in good faith to comply with the tax law. In a broad range of circumstances, the health-care bill would change the law to impose strict liability penalties for income-tax underpayments, meaning that taxpayers will no longer have the luxury of making an honest mistake. The ability of even the IRS to waive penalties in sympathetic cases would be sharply curtailed.

The proposed changes in penalty rules have largely escaped notice because they are buried in a part of the bill that purports to deal with abusive tax shelters. They are barely mentioned in the Ways and Means Committee summary. Their inclusion in the bill underscores the need to read it closely. If anyone had doubts about the value of loading the text of the bill into a wheelbarrow and bringing it to the beach this August, the proposed changes to tax penalties should dispel them.

Of course, it would be silly to expect legislators to actually read the whole bill before they vote for it (that would prevent them from blaming the IRS for enforcing the law as Congress enacted it).

UPDATE: I asked Mr. Peaslee if he would like to respond to the comment thread below. He wrote back:

I am glad to see so many people are interested in this on an end of summer day.

Just to be clear, there are three circumstances in which automatic penalties are applied (which I think are accurately described as broad categories). One relates to tax underpayments arising from the economic substance proposal (or the application of any other similar rule of law). Another relates to large businesses (yes the kind the WSJ readers care about) and a third relates to something called a "tax shelter" which is defined to include any transaction having a significant purpose of tax avoidance (note, not evasion).

The fact that it took so long for a number of your bloggers to find anything other than the economic substance related change does show it was shall we say not apparent on the face of the bill, which was one of my points.

The change relating to "tax shelters" applies to all categories of taxpayers. The "tax shelter" label is highly misleading because of the way the term is defined. The IRS is some settings has taken the view that any transaction that produces a tax advantage involves tax avoidance. A "significant" purpose is a very low threshold. Further, a step that is part of an overall commercial transaction can be undertaken to achieve a tax advantage and hence be a tax shelter as defined. This change could be a very sweeping one given the vagueness of the language. The Government has deliberately avoiding defining the language in other settings because they don't know how to distinguish good from bad and want to preserve their options.

The economic substance change also seems to be tax shelter oriented but because it applies to "similar rules of law" who knows what it covers. Any setting in which a transaction is taxed according to its substance not its form? Also, the core economic substance rule that triggers penalties is extremely vague. They couldn't figure out how to draft it so they set out some statutory rules and then left it to a court to decide if they are relevant without offering any guidance (the rules apply only if a court finds them to be relevant). What grade would you give a student who came up with that?

If you were devising a penalty system that relied on terms as vague as the ones employed here, wouldn't you really worry that those affected could end up being treated unfairly? Are there any crim. law professors on this blog? You are guilty if you commit murder or any "similar" crime.

The larger points I would hope more of you (as law professors) would agree with are: Don't do things by stealth but in the open. Don't make ad hoc changes but think it through. And don't impose penalties without requiring fault, at least big penalties. This latest bit of proposed legislation is sadly part of a trend as the examples I gave (which applied to broad categories as well) showed.

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Debunking Peak Oil:

Michael Lynch explains the problems with "peak oil" predictions. A taste:

Like many Malthusian beliefs, peak oil theory has been promoted by a motivated group of scientists and laymen who base their conclusions on poor analyses of data and misinterpretations of technical material. . . .

A careful examination of the facts shows that most arguments about peak oil are based on anecdotal information, vague references and ignorance of how the oil industry goes about finding fields and extracting petroleum. And this has been demonstrated over and over again.

After debunking the primary arguments for peak oil, he concludes:

Oil remains abundant, and the price will likely come down closer to the historical level of $30 a barrel as new supplies come forward in the deep waters off West Africa and Latin America, in East Africa, and perhaps in the Bakken oil shale fields of Montana and North Dakota. But that may not keep the Chicken Littles from convincing policymakers in Washington and elsewhere that oil, being finite, must increase in price. (That’s the logic that led the Carter administration to create the Synthetic Fuels Corporation, a $3 billion boondoggle that never produced a gallon of useable fuel.)

This is not to say that we shouldn’t keep looking for other cost-effective, low-pollution energy sources — why not broaden our options? But we can’t let the false threat of disappearing oil lead the government to throw money away on harebrained renewable energy schemes or impose unnecessary and expensive conservation measures on a public already struggling through tough economic times.

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"Unless Writing Courses Focus Exclusively on Writing They Are a Sham":

Stanley Fish became "alarmed" when students in a graduate literature course were unable "to write a clean English sentence." (Alas, law professors sometimes have the same experience.) He goes on to discuss his views on a "core curriculum."

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Explaining the Unpopularity of Lawyers: A recent Gallup poll on public opinion towards various professions has the legal field once again near the bottom: Only 25% of people polled had a positive view of lawyers. I thought I would blog a bit on some of the reasons why, and whether those reasons are justified.

  I'm no expert on this question, but my sense is that the low public regard for lawyers has some origins that are justified and others that are less so. On one hand, I think lawyers are properly criticized for how they often use their power to protect the guild. Get a group of lawyers together and have them craft some new laws, and the chances are pretty good that the new laws will be favorable to lawyers. Given how much power lawyers can exercise, I think it's often fair for non-lawyers to look askance at the legal profession for this reason.

  On the other hand, I suspect that the low public regard for lawyers is partly explained by isolation effects that result when lawyers take on advocacy roles in controversial disputes. Lawyers represent clients. And if you have a high-profile dispute with popular and unpopular sides, people are likely to remember the person who took the unpopular side. That person will often be a lawyer for the unpopular side, fostering a very negative impression of lawyers.

  Think about a legal dispute in which you identify really strongly with one side -- perhaps a criminal case in which the crime is heinous and evidence of guilt is overwhelming. Imagine you turn on your TV and you see a show about the case, and the lawyer for the other side is on the show. You're likely to think that lawyer is a shyster: He keeps ignoring the evidence, changing the subject, and saying all these implausible things to try to help a very evil client. The sheer audacity of the lawyer representing the defendant slimeball with a straight face can leave a bad taste in your mouth -- a bad taste about lawyers.

  Sure, the good guys have a lawyer, too. And you'll agree 100% with what that their lawyer says. But you won't remember that as much as you will the lawyer who took the side you find so offensive. I'm no expert in the question, but I suspect that this sort of reaction helps explain part of the low public regard for lawyers.
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Monday, August 24, 2009

An Easy Way to Improve Law School Grades:

(1) Take at least one class with a paper requirement/option. (2) Get to work on the paper right away. (3) Ask the professor in advance if he will give you comments on your paper if you get him a draft early enough, say, by Thanksgiving. (4) Finish a draft paper by Thanksgiving, and give it to the professor for comments. (Don't forget to consult Eugene's book!) (5) Edit the paper based on your professor's comments. If you put some effort into the paper, and paid attention to his comments, you will get a good grade, and very possibly a great grade. (6) Because you have finished the bulk of the work on your paper before Thanksgiving, use the extra time to study for your exams.

And though I titled this post "an easy way to improve law school grades," my experience has been that most law students will write their papers at the last minute, despite all the contrary incentives.

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New Opinions From the Office of Legal Counsel:

Busy day at the Office of Legal Counsel today, wholly apart from the headlines about the (finalized but still unpublished) report by the Office of Professional Responsibility blogged earlier today by Jonathan Adler. Today, the Office of Legal Counsel published a whole mess o' opinions and two memoranda withdrawing five Bush-era interrogation opinions. Previously (on April 16), Attorney General Holder released a statement saying that OLC had withdrawn four Bush-era interrogation opinions; today, OLC published the April 15, 2009 memo in which the four opinions actually were withdrawn, plus a June 11, 2009 memo withdrawing a fifth opinion.

OLC also published ten opinions today, four of them signed during the current Administration (one of them involving the Ronald Reagan Centennial Commission Act of 2009, which was the subject of an Obama signing statement); five signed during the Bush Administration (including one by yours truly concerning the legality of public relations activity undertaken by a former official on behalf of a foreign government); and one from the Clinton Administration.

A couple of observations are in order. First, OLC is to be commended for the speed with which it got the current Administration's opinions onto the website. In each instance, it took just a few months (sometimes less than two), which is breakneck speed for the publication process, historically speaking. Because there is a fairly extensive publication review process, and because affected units of the government traditionally have been asked to comment on OLC's publication decisions (and such requests for comment sometimes slide to the bottom of recipients' in boxes), opinions routinely take (took?) a year or more to be published. The OLC memo outlining the publication process, as well as the OLC opinion-writing process, is available here.

The Bush Administration's OLC was criticized for delays in publication, but there also were significant delays under the Clinton Administration (more on which later), although I should emphasize, both could get opinions into publication quickly when the process worked smoothly. (If you go to the "What's New" page at OLC, you can see the dates that published opinions were signed back to the beginning of 2006, and frequently, the delay was fairly brief — days or weeks — although typically, it was much longer.) I understand that, before the advent of the Internet, opinions were typically published en masse at the end of an Administration.

Second, the current leadership of OLC criticized the Bush OLC for its publication practices, so it may well be that the speedy publication witnessed today is a sign of things to come. But today's releases aren't definitive on that score. Three of the four Obama Administration opinions are on subjects that suggest they were singled out for expedited treatment — they involve the constitutionality of legislation, and DOJ understandably may wish to publish such opinions promptly to make the legal basis for its views known. The fourth opinion, however, involves the eligibility of a retired military officer for appointment as NASA Administrator, which, I gotta say, doesn't scream that it was singled out for expedited publication. It may be that Senate committee with jurisdiction raised questions about the legality of the appointment, arguing the nominee was ineligible, and the opinion was meant to persuade the Committee of the nominee's eligibility. If so, the decision about releasing the opinion outside the Executive Branch (to Congress) would already have been made, and publication would come quickly after that. Under similar circumstances in the past, OLC has published opinions in a matter of a few months. But, in any event, if OLC does make a regular practice of publishing opinions this quickly, it will have set a new standard for timely publication that should be emulated by future officials.

Third, if OLC succeeds in keeping up this pace of publications, it may raise the question whether OLC is still soliciting comments from interested agencies; or (more likely) whether it has set a very short deadline for comment and made clear that a failure to object promptly will be viewed as consent to publication.

Finally, one of the opinions, concerning the census, was signed in May 1999, more than a year before President Clinton left office. This demonstrates that delays in publication are nothing new, since the Clinton Administration did not manage to publish the opinion during the 20 months remaining in the second term. I don't know why the opinion wasn't published during the first Bush (43) Administration. The decision to publish it now, after such a long delay, certainly suggests that there is some special reason for doing so at this particular time, and one obvious reason suggests itself: the impending decennial census. The opinion concludes that section 642(a) of the inelegantly named Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which concerns the authority of federal, state, and local government officials to disclose to the INS (now ICE) information regarding an individual's citizenship or immigration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the disclosure of covered census information by census officials.

The opinions, and the memoranda withdrawing the interrogation opinions, are available here.

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In the Bag:

I mentioned earlier that I didn't post during July because I was holed up working on my semi-humorous and often factual Supreme Court Term-end revue for that most noble of publications, the Green Bag. Persons who suffer from chronic sleeplessness take note: The resulting article is now available online for a price commensurate with its worth.

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[Elizabeth Ryland Priestley, guest-blogging, August 24, 2009 at 9:18pm] Trackbacks
Reply to "Observations on the Fast Day":

MR. EDITOR,

PERMIT me to send you a few comments on your strictures respecting the late fast. The occasion gave you an opportunity of exercising the ingenuity you are well known to possess; and as I am willing to suppose the object of investigation with you is the attainment of truth, by means of free enquiry, I shall make no apology for controverting the opinions you have advanced. I am liberal enough to believe that if you are wrong, you wish not to shrink from confutation; if you are right, opposition will render more conspicuous the justice of your cause.

That the observance of a Fast was merely recommended by the President, cannot I think admit of doubt, since the constitution vests him with no power to appoint them, and no penalty is consequent on non-observance.

And why should the recommendation have less weight coming from so distinguished a character? The man who by the suffrages of a free people is appointed to the first office of government, may fairly be supposed to possess and deserve their confidence and good opinion in a pre-eminent degree; and advice coming from so respectable a quarter will excite particular attention, not from the station itself, but from the respectability of character such appointment pre-supposes.

I see no ground for the alarm you manifest of an alliance of Church and State from this assumption (as you would call it) on the part of the President. In calculating the probable consequences of public acts, the spirit of the times is an important consideration. It is from the tendency of the public mind, such acts must derive complexion and importance. This is as soil and climate to the plant. When (as was the case at the time the government of England strengthened itself by ecclesiastical influence) the public mind leans to a superstitious reverence for religion, the Church may be converted to a dangerous state engine; and first approaches to a combination of ecclesiastical with civil power, are in such circumstances, to be carefully guarded against. But in the present day, when religion has lost and continues to lose ground, and when infidelity with dauntless front makes rapid strides among us, we need be under no apprehension of the State seeking so old fashioned a coadjutor as the Church. The spirit of the times is a pledge of security on this score.

Were the sole aim of government the extension of its own power, with a total disregard of what ought to be the great object of all governments — the common good, sound policy, even with this view, would not seek the alliance you deprecate. In this country sects are numerous, and no one has pretensions to an ascendency that shall balance an union of rival claims. By this measure therefore enemies would be multiplied beyond all proportion to the accession of friends. For such is the spirit (not of Christianity) but of Bigotry that too generally pervades every denomination of Christians, that, however desirous all may be of secular influence, each would I believe prefer a government that should countenance no religion at all, to one that should support a system in the most trivial particulars inimical to its own.

That the President should recommend industry and attention to commerce, to agriculture, to education, or to objects of public utility in general, would be considered fit and laudable. On what principle then, can it be thought unbecoming in him to recommend religious exercises, which he may deem equally important in promoting the welfare of society? If no compulsory means are used to enforce their observance, and every person is free to follow the dictates of his own mind, where is the reasonable ground of complaint? And when the interests of religion are visibly declining, I think it highly desirable that influential characters should manifest their respect for it.

Jesus Christ, you observe, says his kingdom is not of this world. It is true that its rewards and punishments are not; but it will not be denied that the object of it, which is to render men more virtuous and useful, concerns this life; and religious acts may be fairly considered as a means to this end.

Your next argument, being founded on a supposed alliance of Church and State which has at present no existence, nor in my opinion is likely to have, does not call upon me for a reply.

Fasts you observe are approved and directed by despotic governments; but this alone is not sufficient to condemn them: measures should be weighed by their tendencies and effects, and not by the quarter whence they come. There is no government whose measures uniformly and invariably tend to evil; and since the object of arbitrary power in the appointment of these Ceremonies can be no other than to please and conciliate the people, it proves they are acceptable to and thought well of by them; certainly a presumptive argument in their favour.

To your reprobation of the conduct of the Judges in sanctioning this act of the President by the suspension of business on that day, I think this answer may be made. The fast may have appeared to them useful and proper, and they might suppose that the persons who had business to transact at court, would concur in the opinion. To your objection of the inconvenience and expence to which it may have subjected persons who were of different sentiments, I confess I have nothing to reply. Such persons may perhaps justly argue that the laws of the country ought not to be superseded by presidential recommendation.

In answer to your objection that fasts do not answer the ostensible purpose of their appointment, I shall not have recourse to the common observation that “the abuse of a thing is no argument against its use;” for wisdom would not prescribe that which would probably be abused. I shall content myself with saying that what you call idleness and feasting, I think may occasionally be very good things; though I should rather call them recreation and social enjoyment. Whatever promotes friendly intercourse between man and man, and calls the kind affections into play, is as favourable to virtue as to pleasure; and a holiday of this kind is, to the mass of the people, a flower in the path of life: a sentiment in which I dare say you will agree with me, although a panegyric on feasting, may seem a paradoxical mode of defending fasting.

You entertain fears that this example may induce future Presidents, with less respect for religion, to make it subservient to purposes of state intrigue; I have no apprehensions of the kind. The mere garb of piety will not go far in this country. The people have too much good sense, and too little predilection for religion, to be deceived by it.

If, Mr. Editor, you think the above remarks are worth inserting in your paper, they are much at your service.

[For the PDF version, see here.]

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Advice for Second Year Law Students:

Reposted from 2006.

A reader writes: "How about offering some advice for second year law students--not making a journal, with mediocre grades, at a respected but not elite law school? I am somewhat amazed by my grades coming out of this year and little concerned that I made a poor decision."

My advice is, first, don't despair. I know many students who had mediocre grades their first-year, and wound up doing much better the rest of their law school careers. One student I recall was in the top 45% first year, but wound up in the top 15%. Many of the students who did well first-year will coast. Most of the students who had mediocre grades will be discouraged, and will reduce their effort. This gives you the opportunity to continue to work hard and get excellent grades against weaker competition.

Second, don't waste a lot of time on a secondary law review. Raising your GPA is likely to have a much greater positive impact on your career prospects than being Articles Editor for the Podunk Law School Journal of I Want to Have Law Review on My Resume. A potential exception is when the specific subject matter of the journal is directly related to your career goal. [I received a lot of feedback that many employers screen resumes for law review membership. At small firms this may mean that a secretary is just looking for the words "law review" somewhere on the resume. So become a member, but try to get a position that leaves as much time as possible for focusing on other matters, especially grades.]

Third, and most important, make an appointment with each of your first-year professors to go over your exams with them. DON'T look at this as an opportunity to dispute the professors' interpretation of the answers, to argue about your grade, or to carry out revenge fantasies. Do listen, attentively, and also take notes, as your professor explains what was deficient about your exam, and how it could have been improved. If the professors will let you, tape record the conversations. Most likely, common themes will become apparent (you didn't relate the facts of the question to the law, you gave a lengthy treatise providing both sides of the issue, but you never discussed which side you think is more persuasive in this context and why, so I couldn't give you full credit and so on). Then, make sure you don't repeat the same mistakes in December.

UPDATE: Several commenters provide what seems like useful advice re clinics, internships, and whatnot. Such experiences can obviously not only provide useful experience, but also help someone with less-than-stellar grades land a job. Unfortunately, I don't have any special wisdom regarding how much effort to one should put into such endeavors versus improving one's academic performance, and I suspect the answer would vary widely by individual circumstance. I would add, though, that the fact that many upper-level students are devoting significant effort to time-consuming clinical work, part-time employment, moot court, and so forth, means that there will be less competition for those who choose to focus on raising their grades.

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For Engineers Studying Law: Back in 2007, I posted this perspective on studying law for students with backgrounds in the hard sciences and engineering. With the start of the new semester at law schools around the country, I thought I would repost it for new law students (and new readers) who might be interested in it.
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Clerk for Justice O'Connor: All you need to do is play Supreme Decision, the new game over at the O'Connor-endorsed website OurCourts.gov. As the Blog of Legal Times explains:
A hypothetical female swing-vote justice -- hmm, who might that be? -- asks you, the player, to help her reach a decision in a First Amendment case, Ben v. Hamilton Middle School. The dispute involves a student barred from wearing a t-shirt bearing the name of his favorite band, called "Hall of Rejects." After brief arguments on both sides, the swing justice, named Irene Waters, comes out of the Court's conference to seek research help from her law clerk -- that would be you -- on how to decide the case. You then get to listen to mini-debates between justices on each side of the issue, answer questions about their views, and then vote which side to support.
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[Thomas Cooper, guest-blogging, August 24, 2009 at 7:10pm] Trackbacks
Observations on the Fast Day:

Thursday [April 25, 1799] being the day appointed by the President of the United States for a general fast, the Court of Quarter Session at Sunbury, transacted no business on that day.

I confess myself ignorant by what part of the constitution or laws of the Union, the President is invested with the power of appointing a day of fasting or prayer. If it be a mere recommendation, it is of no more importance than that of any other person to the same purpose, being not within the pale of the President’s constitutional authority. Indeed I should be inclined to pay still less attention to it, because it has more than a semblance of uniting two subjects that in my opinion ought never to be joined together, POLITICS and RELIGION. It is a recommendation, to which if authority be given by usage, when it can derive none by law, a commencement is formed in AMERICA as in the old corrupt and corrupting governments of Europe, of “an alliance between church and state,” of which the President for the time being is the head.

I should pay more respect to the recommendation of the Clergy and Presbytery, because it is in the way of their profession; but I am jealous in a free government, of any gradual assumption on the part of persons high in office, of powers not given to them by the law of the land. What is now a recommendation, may be soon arrogated as a right, and Privilege and Prerogative may soon become as fashionable and as undefinable in this country, as in the old governments of Europe.

Nor do I like to see the examples of those governments pursued here, even to circumstances apparently trifling and minute. When the late Empress of Russia of notorious memory, heard that Suwarrow had immolated 40,000 Poles at the Shrine of Despotism, after the cruel siege of Cracow and Warsaw, she ordered a solemn day of religious exercise throughout her savage dominions. Louis the XIVth always sung Te Deum after the slaughter of the people whose territories he had invaded; and his most sacred Majesty George the IIId appointed a day of fasting and prayer immediately after it was determined to reject the offers of peace of the French Ministry. These solemnities have been frequently repeated at the command of that religious Monarch, in England during the present war; but as the Elector of Hanover has long ago made a treaty of peace with the French nation, I hear of nothing of this kind in that Electorate.

I have no objection, but much otherwise, to religious acts and exercises where they are voluntary and sincere. But I hope we shall never be drilled into them, or compelled to wheel to the east, or wheel to the west in religious discipline at the direction of any MAN whatever. “My kingdom is not of this world,” says Jesus Christ; but we imitate too closely those who are determined that it shall be.

That devout frame of mind which leads a man to repress his passions, to become master of himself, to imitate on a small scale the conduct of his Infinite Maker, by cultivating dispositions of kindness and benevolence, of peace and good will toward men, is a frame of mind earnestly to be sought, and highly to be commended; but there appears to me something like impiety in making religion an engine of state, and much as I may approve of religion in its proper place, I am decidedly averse to POLITICAL RELIGION.

Nor do I see upon what ground the good sense of the Judges, can justify their well-meant omission of public duty on account of the President’s appointment of a fast day. The highest act of tyranny under the despotic reign of Henry the VIIIth, was his inducement of parliament to give to his Proclamations the force of Law. In the present case, the Court have voluntarily done the same thing. The Law says to the Judges, you shall hear and decide causes, on that day — the President proclaims it a day of fasting and prayer — and Magistrates, appointed and sworn to execute the laws, think proper to dispense with them in favour of the President’s proclamation! Nor is the expence and inconvenience the public are put to on this occasion a trifling object. The attendance of juries and witnesses is at all times a heavy tax on the community, and especially so in this time of general poverty. To increase it unnecessarily is a measure hardly to be approved.

Nor do these fast days answer even the ostensible purpose of appointing them. I appeal to the experience of my readers whether they are not generally days of idleness and of feasting? I doubt extremely if one man in the United States really and sincerely fasted on that day.

I believe Mr. Adams is a sincerely religious man, and that his motives may be good: the greater is the danger from the example. Proclamations for fasts may be issued hereafter, by persons who have no pretence to religion at all: for it is not necessary that a magistrate should be a true believer to convert religion into an instrument of state intrigue.

[For the PDF version, see here.]

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Reboot:

Remember that California federal district court challenge to DOMA, the one that got the Obama administration in so much trouble with gay-marriage supporters after the DOJ filed a kitchen-sink motion to dismiss in which it attacked all of the main constitutional arguments for gay rights of the past thirty years? Today the federal judge dismissed it on procedural grounds. It'll be refiled, but will face serious jurisdictional obstacles.

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Cato Constitution Day Events, Sept 17: The Cato Institute always puts on an interesting program for Constitution Day, which is every September 17: You can see the schedule for this year's events here. There's lots of interesting stuff, although the only Conspirator who is speaking this year is me. You can watch last year's event online here.
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Elizabeth Ryland Priestley:

Two of the items in Thomas Cooper’s Political Essays -- the first part of On the Propriety and Expediency of Unlimited Enquiry, and the reply to Cooper’s Observations on the Fast Day -- are written by Elizabeth Ryland Priestley (1769–1816), the daughter-in-law of Cooper’s friend and eminent chemist and philosopher Dr. Joseph Priestley.

Cooper gave credit to his coauthor by labeling the items as having been written by “E.P.,” and by noting her more specifically (“Mrs. Priestley”) in the preface to On the Propriety. But her work has since gone unremarked. Leonard Levy cited On the Propriety as “a two-part essay,” but credited it entirely to Cooper. An essay in The Press & the American Revolution cited several passages that it credited to Cooper, yet all but one of the citations were to Priestley’s part; Priestley’s name was not mentioned. One of the few works on Cooper and free speech, a master’s dissertation published by the University of Wisconsin, discusses Cooper’s work extensively but doesn’t mention Priestley’s contribution. Cooper’s biographer Dumas Malone mentions her only very briefly.

The source through which Cooper’s work has been recently known, Freedom of the Press from Hamilton to the Warren Court, reprinted only Cooper’s portion and didn’t mention Priestley’s contribution. I could find no law review articles that mention her. A few articles in other disciplines mention her in passing, chiefly in discussing her illustrious father-in-law. A few books mention her in connection with the Joseph Priestley House. Her writing is briefly noted in Jane DuPree-Begos’s Joseph Priestley’s Feminist Legacy, a pamphlet published by the Joseph Priestley House, and in Esteem, Regard and Respect for Rationality: Joseph Priestley’s Female Connections, an article in the Bulletin for the History of Chemistry cowritten by Professor Kathleen L. Neeley and Joseph Priestley House’s M. Andrea Bashore. Nor could I find any original sources from that era mentioning Elizabeth Ryland Priestley, except for a fleeting reference that sheds no light on her intellectual interests.

English and American women of the late 1700s participated in public intellectual life only rarely. There were a few who did write history or political commentary: Mercy Otis Warren was a prominent American playwright, historian of the American revolution, and (though under a pseudonym) critic of the proposed Constitution. In England, Catharine Macaulay was a noted historian and reformist political writer. Macaulay’s Letters on Education, with Observations on Religious and Metaphysical Subjects (1790) and Mary Wollstonecraft’s A Vindication of the Rights of Woman (1792) were leading early political works in favor of women’s rights. And of course there were important women writers of fiction, most notably Fanny Burney. But despite these examples, when it came to discussion of political theory, or of free speech in particular, female commentators were very rare. Priestley deserves attention; at least she deserves not to be forgotten. Perhaps some historian can uncover more on this intriguing woman, if something survives to be uncovered. All I can do is note her contribution to the essays that follow.

I can also note that at least three of Priestley’s descendants have not languished in obscurity. Elizabeth Priestley’s granddaughter, Bessie Rayner Parkes, became a prominent English feminist author of the mid-1800s. Parkes in turn was the mother of noted authors Marie Adelaide Belloc Lowndes and Hilaire Belloc.

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Thomas Cooper:

I first heard about Thomas Cooper when I came across the case that bears his name, United States v. Cooper. I wanted to teach my students about the infamous Sedition Act of 1798 and was looking for a case that best illustrated how it had been applied. Cooper proved to be a prime example — Thomas Cooper was prosecuted essentially for writing the following:

At that time [President Adams] had just entered into office. He was hardly in the infancy of political mistake. Even those who doubted his capacity thought well of his intentions. Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war.

Mr. Adams had not yet ... interfered, as president of the United States, to influence the decisions of a court of justice — a stretch of authority which the monarch of Great Britain would have shrunk from — an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.

This, Justice Chase concluded (and the jury ultimately agreed), was not only a “scandalous and malicious libel ... against ... the president,” but “false” as well. The charge related to the nation’s credit was supposedly false because the late 1790s weren’t really a “time of peace.” The condemnation of the president’s conduct in the Jonathan Robbins matter was supposedly false because the president was required by treaty to hand Robbins over. And the “standing army” statement was supposedly false because (Justice Chase reasoned) the army couldn’t be “standing” given that, in accordance with the Constitution, its expenses could only be authorized for two years.

Today, these disagreements between Cooper and his critics would be treated as matters of opinion, and Cooper’s statements could not be condemned as false. But the Cooper case illustrated how a law ostensibly aimed at punishing “malicious” falsehoods could end up punishing opinions as well. Cooper’s case remains the only non–Supreme Court opinion that I’ve included as a main case in my First Amendment textbook.

But I soon learned that Cooper was more than just a partisan polemicist — he was also an incisive commentator on free speech, religious freedom, and other matters. The essays that the New York University Journal of Law & Liberty is reprinting ... help illustrate that; On the Propriety and Expediency of Unlimited Enquiry, cowritten with Elizabeth Ryland Priestley, is an especially good example.

Cooper was also one of the leading public intellectuals of post-revolutionary America, a man with a remarkable breadth of interests and a talent for controversy.

Cooper’s libel prosecution stemmed from his anti-administration efforts, but indirectly. In 1797, [Joseph] Priestley had written to the newly elected Adams, with whom Priestley was at the time friendly, urging Adams to appoint Cooper to a federal post as the American agent before a board of commissioners for resolving disputes between the U.S. and England. In 1799, when Cooper had become editor of the Northumberland Gazette and an opponent of the administration, Cooper’s enemies tried to use the application against him, arguing that his not getting the job is what turned him against Adams. Cooper in turn responded with the handbill that formed the basis of his prosecution under the Sedition Act. The phrase “hardly in the infancy of political mistake” referred to why Cooper thought well of Adams in 1797; the remainder explained why Cooper had changed his mind.

Cooper’s libel was published in late 1799, but the prosecution came only some months later, follwing Cooper’s continuing attacks on the Federalists. In particular, in 1800, anti-administration editor William Duane criticized the Senate Federalists’ drafting of a proposed electoral count bill, and the Senate sought to try Duane for contempt of Congress. Duane asked Cooper and Alexander J. Dallas (who is known today chiefly as the reporter for the Supreme Court’s earliest decisions) to serve as his counsel, but they publicly declined.

Cooper’s reply was characteristically harsh. It began with “I have every inclination to render service to you and to your cause, but I will not degrade myself by submitting to appear before the Senate with their gag in my mouth” (referring to the limitations that the Senate was planning to impose on the arguments that counsel could make). And it ended with “Where rights are undefined, and power is unlimited — where the freedom of the press is actually attacked, under whatever intention of curbing its licentiousness, the melancholy period cannot be far distant when the citizen will be converted into a SUBJECT.” This attack on the Senate Federalists seems likely to have prompted Cooper’s prosecution for the earlier handbill.

Cooper’s six-month Sedition Act prison term did not dampen his passions. Within a month of being released, Cooper proceeded to New York to pursue Alexander Hamilton, who was then Secretary of Treasury but who had publicly broken with Adams in a scathing pamphlet labeled Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq., President of the United States. Hamilton, Cooper reasoned, had libeled Adams at least as much as Cooper had and thus likewise merited prosecution under the Sedition Act. As Cooper wrote to Hamilton in asking for an admission that Hamilton had indeed written the anti-Adams pamphlet,

Under [the Sedition Act], passed through the influence of a party, of which you are (and I think justly) regarded as the head, I have suffered six months tedious imprisonment, and paid a fine of 400 dollars. I therefore have a right to retaliate: I have a right to try the experiment, whether Republicanism is to be the victim of a law, which Aristocracy can break through with impunity. — There have been many petty offenders in this respect among what is called the Federal party; but I have nothing to do with the Fennos, the Waynes and the journeymen of federalism. You are worth trying the experiment upon. — Your energy and your talents have rendered you a conspicuous object of praise and blame.

Cooper’s call for prosecution of Hamilton went nowhere legally, but it did attract a good deal of public attention.

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Thomas Cooper & Elizabeth Ryland Priestley, Guest-Blogging:

I'm delighted to report that Thomas Cooper and Elizabeth Ryland Priestley will be guest-blogging this week, reprising some of their work in Political Essays (2d ed. 1800). The New York University Journal of Law & Liberty has just reprinted much of the Essays, and I thought I'd further reprint excerpts here, to give our readers a direct taste of some of the debates that were going on in early America.

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Circuit Split on Corporate Liability in Alien Tort Statute Cases?

Over at Opinio Juris, the international law professor blog, my colleague Roger Alford (Pepperdine) has a great new post up on amicus briefs being filed by various prominent law professors on the question of corporate liability in Alien Tort Statute cases. Part of the debate is whether there is now a circuit split on fundamental questions of corporate liability in international law, and whether that urges a hearing by the Supreme Court, which did not exactly settle ATS standards with its Delphic Sosa decision a few years ago.

My own views on corporate liability in international generally, and ATS actions particularly, are firmly that, well, there isn't any such thing in positive international law as it currently exists. It wasn't an oversight to be "gap-filled" by the Federal courts, even it such a thing were appropriate - lots of countries have expressed strong views that, for whatever reasons, in various important treaties they did not want to include corporate liability and so they did not. I talked about this as a black letter law issue in an expert declaration I offered for corporate defendants in the last of the Agent Orange cases, downloadable here.

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Why Most (Sucessful) Politicians Value Staying in Power More than the Public Good:

Prominent blogger Matthew Yglesias recently expressed surprise that most politicians are willing to sacrifice the public good in order to hold onto power:

I’ve come to be increasingly baffled by the high degree cynicism and immorality displayed in big-time politics. For example, Senators who genuinely do believe that carbon dioxide emissions are contributing to a global climate crisis seem to think nothing of nevertheless taking actions that endanger the welfare of billions of people on the grounds that acting otherwise would be politically problematic in their state. In other words, they don’t want to do the right thing because their self-interest points them toward doing something bad. But it’s impossible to imagine these same Senators stabbing a homeless person in a dark DC alley to steal his shoes . . .

Making it all the odder, the level of self-interest at stake isn’t all that high. Selling the public good down the river to bolster your re-election chances isn’t like stealing a loaf of bread to feed your starving children. The welfare rolls are hardly stocked with the names of former members of congress. Indeed, it’s not even clear that voting “the wrong way” poses particularly serious threats to one’s re-election. But even if it did, one might assume that people who bother to dedicating their lives to securing vast political power did so because they actually wanted to accomplish something and get in the history books, perhaps, as one of the big heroes of their era.

Tyler Cowen and Arnold Kling correctly point out that professional politicians are likely to be individuals who place a high value on power and prestige. To such people, there is a lot at stake when they risk losing their positions. True, they won't starve. But they will lose the power they greatly value and have dedicated their lives to achieving. Yglesias notes that the same politicians who routinely sacrifice the public interest to preserve their positions wouldn't think of committing murder. That, however, is at least partially because in the US and other liberal democracies committing murder usually destroys a politician's career rather than bolsters it. In countries where killing people often does advance your political career, (think any of numerous Third World states where political leaders can get ahead by killing or repressing political opponents), the political class is indeed filled with murderers.

One might still ask why the power-seekers tend to predominate over those who place a higher value on the public good. The key explanation is selection effects. A politician willing to do anything to take and hold on to power will have a crucial edge over an opponent who imperils his chances of getting elected in order to advance the public interest. The former type is likely to prevail over the latter far more often than not. This is especially true in a political environment where most voters are often ignorant and irrational about government and public policy. Candidates have strong incentives to pander to this ignorance and exploit it in order to win elections. Those unwilling to exploit public ignorance because they place the public interest above political success are likely to be at a serious disadvantage relative to their less scrupulous opponents. Thus, politicianswho value power above other objectives are more likely to get into office and stay there. As economist Frank Knight wrote back in the 1930s, "[t]he probability of the people in power being individuals who would dislike the possession and exercise of power is on a level with the probability that an extremely tender-hearted person would get the job of whipping master in a slave plantation."

Finally, Yglesias suggests that a politician who prioritizes the public good could potentially be remembered as one of the great political "heroes" of the age, which should give our leaders a strong incentive to prioritize the public good. There are three problems with this argument. First, you are unlikely to become a great political hero unless you get into power and stay there for a considerable length of time. Doing so usually requires prioritizing political survival. Second, cynical political manipulators also can be remembered fondly by history if they build a successful political coalition (think FDR or Disraeli). Finally, and most important, the odds of being remembered by history as a great political hero are generally very low, even if a politician makes it his top priority. By contrast, the average politician stands a much better chance of getting a position of power and prestige in the here and now, if he puts his effort into that. For most politicians, a 50% or even a 10% chance of fame and power today is more valuable than an 0.1% chance of being remembered as a great hero years after they die.

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Monday Asian Bear-Blogging:

Here are some bear pictures from my recent trip to Japan and Korea. Japanese black bears from the Tokyo Zoo:

And a Hokkaido Brown Bear:

Finally, here is a picture from the Seoul Teddy Bear Museum, located in the Seoul Tower. The Museum uses costumed teddy bears to portray scenes from Korean history. In this scene, the King of Korea receives the title of Emperor in 1897:

UPDATE: If you click on the images, you will see a bigger and much sharper picture.

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Cap-and-Trade in Drag:

Even those who support the idea of a cap-and-trade approach to climate change think the Waxman-Markey bill, aka the American Clean Energy and Security Act of 2009, is a mess. Writing in today's WSJ, environmental law professors Richard Stewart and David Schoenbrod, argue against the bill:

Waxman-Markey is largely top-down regulation dressed in cap-and-trade clothing. It purports to set a cap on greenhouse gases, but the cap is so loose in the early years that through the use of cheap offsets the U.S. need not significantly reduce its fossil-fuel emissions until about 2025. Then the bill would require a nosedive in fossil-fuel emissions. This balloon mortgage pledge of big cuts later is unlikely to be kept.

The top-down directives come in three forms. First, electric utilities, auto makers and states get free allowances on the condition that they comply with regulations requiring coal sequestration, alternative energy sources, energy conservation, advanced auto technology and more. Second, many other provisions of the 1,428 page bill mandate outright regulation on subjects ranging from how electricity is generated to off-road vehicles and household lighting. Third, still other provisions provide subsidies for government-chosen technology "winners" such as alternate energy sources, plug-in vehicles and weatherization of old buildings.

Former Senator Tim Wirth, who sought to negotiate an international climate change agreement in the Clinton Administration, agrees that the bill is "out of control."

The WSJ reported earlier this month that the two economists credited with inventing the idea of a cap-and-trade pollution control regime, Thomas Crocker and John Dales, doubt its ability to control carbon emissions.

Mr. Crocker and other pioneers of the concept are doubtful about its chances of success. They aren't abandoning efforts to curb emissions. But they are tiptoeing away from an idea they devised decades ago, doubting it can work on the grand scale now envisioned. . . .

Mr. Crocker sees two modern-day problems in using a cap-and-trade system to address the global greenhouse-gas issue. The first is that carbon emissions are a global problem with myriad sources. Cap-and-trade, he says, is better suited for discrete, local pollution problems. "It is not clear to me how you would enforce a permit system internationally," he says. "There are no institutions right now that have that power." . . .

The other problem, Mr. Crocker says, is that quantifying the economic damage of climate change -- from floods to failing crops -- is fraught with uncertainty. One estimate puts it at anywhere between 5% and 20% of global gross domestic product. Without knowing how costly climate change is, nobody knows how tight a grip to put on emissions.

In this case, he says Washington needs to come up with an approach that will be flexible and easy to adjust over a long stretch of time as more becomes known about damages from greenhouse-gas emissions. Mr. Crocker says cap-and-trade is better suited for problems where the damages are clear -- like acid rain in the 1990s -- and a hard limit is needed quickly.

"Once a cap is in place," he warns, "it is very difficult to adjust." For example, buyers of emissions permits would see their value reduced if the government decided in the future to loosen the caps.

Dales, who died in 2007, also expressed skepticism on the utility of cap-and-trade for carbon emissions, as has David Montgomery, who is generally credited with helping to develop Dales' and Crocker's ideas.

Some cap-and-trade proponents remain undaunted, and seem surprised that the legislative effort to design a carbon cap-and-trade regime has produced such an unwieldy monstrosity of legislation. They shouldn't be. As I've argued before, the inherent complexity of a universal cap-and-trade scheme is an invitation to legislative meddling and special interest pleading. We rarely get "clean" legislation in Washington, but the more complex a legislative idea is, the more grime and grit it will collect, inducing unforeseen complications and undermining transparency.

There is a better way -- not perfect, but better. Rather than impose a carbon cap, which would require the government to develop complex rules for measuring and transacting credits, offsets, etc. -- Congress should adopt a broad-based tax on carbon, offset by reductions in other corporate and income taxes. Combined with policy measures designed to accelerate innovation in the energy sector, such as the replacement of traditional subsidies with prizes, a carbon tax would set the United States on a course of reducing its greenhouse-forcing emissions without spawning a new regulatory behemoth.

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To Prosecute or Not to Prosecute:

The New York Times reports that the Justice Department's Office of Professional Responsibility recommends that the federal government reopen potential cases against CIA employees for using illegal interrogation techniques on terror-related detainees. New details of detainee abuse, contained in the CIA Inspector General's report, were leaked over the weekend. The report is due to be released today.

Meanwhile, Jeffrey Smith, who served as the CIA's general counsel in 1995 and 1996, makes the case against prosecuting CIA employees in today's Washington Post. Smith concludes:

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

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Paging Jack Bauer:

The Washington Post reports on the creation of a new counter-terror unit, the High-Value Detainee Interrogation Group (HIG). This unit will officially be part of the FBI, but will be subject to direct White House oversight through the National Security Council.

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Sunday, August 23, 2009

Ma'ariv vs. Joe Stork:

I don't want to become the Human Rights Watch blogger, but since we've taken the story this far, I figured I'd tell interested readers that HRW deputy Middle East director Joe Stork responded to the widely cited Ma'ariv article criticizing him last week, and the Ma'ariv editorialist lashed back with a massive Fisking; much better, in my opinion, than his original piece.

From what I can tell, the various revelations over the last few weeks about Human Rights Watch--the fundraising trip to Saudi Arabia, the anti-Israel activist backgrounds of its Middle East staff, the contemptuous attitude toward pro-Israel critics (who often turn out to be right) contrasted with the obsequious attitude toward anti-Israel critics, and so on--has cost the organization its credibility among a very broad swath of Israeli and Western pro-Israel public opinion, including the moderate left.

From now on, every HRW report on Israel is going to be greeted with "you mean the Saudi-funded HRW," or "you mean the report written by the woman [HRW Middle East director Sarah Leah Whitson] who is a great admirer of Norman Finkelstein and lobbied Kofi Annan against Israel in the middle of the Second Intifada" or "you mean the report written by the guy [Stork] who supports the anti-Israel boycott movement and has been venting his hostility to Israel for almost forty years" or "you mean HRW, the organization that fails to take down from its website anti-Israel reports even when it has admitted they are inaccurate," and so on.

A housecleaning is needed. Transfer Stork, Whitson, and the rest of the current crew to an area in which they don't have strong ideological priors, and bring in some real human rights advocates to replace the anti-Israel propagandists. Or just preach to the leftist, anti-Israel choir, but don't expect anyone else to pay attention.


A Highly Useful Academic Discussion of Credit Derivatives:

Putting together materials for the corporate finance class that is about to begin this upcoming week, I decided to include a chunk of this exceptionally clear, informative and well-argued article on credit derivatives - credit default swaps and collateralized debt obligations - by law professors David Skeel and Frank Partnoy. (The more I think about it, by the way, the longer the list of law professors in my mind who are contributing lots and lots to thinking through the post-financial crisis future.) I thought there might be some VC readers also on the lookout for something on this topic. The fact that it is from 2007, before everything came crashing down, makes it all the more interesting, particularly given the 'bright side" / "dark side" organization of the article. The pdf is a scan of the journal pages and takes a little time to download, but I think it is a great article both as scholarship and as a pedagogical tool. Here's the SSRN abstract:

The Promise and Perils of Credit Derivatives, 75 University of Cincinnati Law 1019 (2007)

In this Article, we begin what we believe will be a fruitful area of scholarly inquiry: an in-depth analysis of credit derivatives. We survey the benefits and risks of credit derivatives, particularly as the use of these instruments affect the role of banks and other creditors in corporate governance. We also hope to create a framework for a more general scholarly discussion of credit derivatives.

We define credit derivatives as financial instruments whose payoffs are linked in some way to a change in credit quality of an issuer or issuers. Our research suggests that there are two major categories of credit derivative. First, a credit default swap is a private contract in which private parties bet on a debt issuer's bankruptcy, default, or restructuring. For example, a bank that has loaned $10 million to a company might enter into a $10 million credit default swap with a third party for hedging purposes. If the company defaults on its debt, the bank will lose money on the loan, but make money on the swap; conversely, if the company does not default, the bank will make a payment to the third party, reducing its profits on the loan.

Second, a collateralized debt obligation (CDO) is a pool of debt contracts housed within a special purpose entity (SPE) whose capital structure is sliced and resold based on differences in credit quality. In a cash flow CDO, the SPE purchases a portfolio of outstanding debt issued by a range of companies, and finances its purchase by issuing its own financial instruments, including primarily debt but also equity. In a synthetic CDO, the SPE does not purchase actual bonds, but instead enters into several credit default swaps with a third party, to create synthetic exposure to the outstanding debt issued by a range of companies. The SPE finances its purchase by issuing financial instruments to investors, but these instruments are backed by credit default swaps rather than any actual bonds.

In the Article's first substantive part, we discuss the benefits associated with both types of credit derivatives, which include increased opportunities for hedging, increased liquidity, reduced transaction costs, and a deeper and potentially more efficient market for trading credit risk. We then discuss the risks associated with credit derivatives, such as moral hazard and other incentive problems, limited disclosure, potential systemic risk, high transaction costs, and the mispricing of credit. After considering the benefits and risks, we discuss some of the implications of our findings, and make some preliminary recommendations. In particular, we focus on the issues of disclosure, regulatory licenses associated with credit ratings, and the special treatment of derivatives in bankruptcy.

Consider, as an update, this pregnant paragraph - from 2007 - on what the CDO market was/is about:

In sum, CDOs present not only the numerous risks associated with credit default swaps, but also the risk that parties are spending billions of dollars in fees to buy mispriced debt. The potential market inefficiencies are substantial, given the size of the CDO market and the magnitude of CDO fees. There are two possibilities: either CDOs are being used to arbitrage a substantial price discrepancy in the fixed income markets or CDOs are being used to convert existing fixed income instruments that are priced accurately into new fixed income instruments that are overvalued. The first possibility assumes the existence of a substantial market inefficiency, perhaps the most substantial inefficiency ever found in the finance literature. The second possibility seems more likely. In other words, CDOs either are evidence of a substantial and pervasive market imperfection, or they are being used to create one. In the next we examine potential reforms, including suggestions for reducing the market distortions associated with CDOs. (emphasis added.)

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A Recording Contract Clause You Might Not Have Thought Of:

Would you think to include, in your recording contract with a label, a clause obligating the record company to fund your "education for life"? Early hip-hop star Shante

blazed a trail followed by Lil' Kim, Salt-N-Pepa and Queen Latifah - although Shante didn't share their success. After two albums, Shante said, she was disillusioned by the sleazy music industry and swindled by her record company. The teen mother, living in the Queensbridge Houses, recalled how her life was shattered.

"Everybody was cheating with the contracts, stealing and telling lies," she said. "And to find out that I was just a commodity was heartbreaking."

But Shante, then 19, remembered a clause in her Warner Music recording contract: The company would fund her education for life.

She eventually cashed in, earning a Ph.D. in psychology from Cornell to the tune of $217,000 - all covered by the label. But getting Warner Music to cough up the dough was a battle.

"They kept stumbling over their words, and they didn't have an exact reason why they were telling me no," Shante said.

She figured Warner considered the clause a throwaway, never believing a teen mom in public housing would attend college. The company declined to comment for this story.

Shante found an arm-twisting ally in Marguerita Grecco, the dean at Marymount Manhattan College. Shante showed her the contract, and the dean let her attend classes for free while pursuing the money.

The Warner label eventually paid up. Enforceable in court? I haven't seen the contract, but I don't see why not. Good for Shante.

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The Lockerbie Release and the Politics of the Security Council:

Ruth Wedgwood comments at Forbes magazine website on the “compassionate” release of Al-Megrahi from prison in Scotland. I agree overall with Ruth:

Abdel Basset Ali al-Megrahi, is now a free man. He was convicted in the specially created Hague trial court by a panel of Scottish judges, and his appeal was rejected by the Scottish appellate chamber. He remained in prison and began to serve his time.

But on Aug. 20, 2009, he was released from his Scottish jail cell by the justice minister of Scotland, walking away from a 27-year sentence. The release, said the minister, was a gesture of “compassion” in light of the defendant’s advanced prostate cancer.

Al-Megrahi has now flown back to Tripoli on the Libyan leader’s private plane. Ardent supporters were brought to the airport by government buses to greet him on his return. He has appeared publicly with one of al-Qaddafi’s sons and will be received officially by al-Qaddafi as well.

When the prospect of the release of this convicted murderer became widely known this week, the president of the United States told a radio interviewer he had “objected” to the release. But he did not say how much body English had gone into this objection. President Obama warned that al-Megrahi should not be given a “hero’s welcome” by Libya. But this thought too was, as diplomats like to say, “overtaken by events.”

Meanwhile, British Foreign Minister David Miliband says it is a “slur” to speculate that the release of a mass murderer was influenced, even at the margin, by the bidding for oil extraction rights in Libya. One of England’s princes has been to Libya three times recently to talk about oil.

The role of oil, though, does make the motivation for al-Megrahi’s release look murky, and the road ahead worrisome.

John Bolton got at the fundamental 'international law and politics' problem that Ruth's article raises, back in 2000 (”Is There Really ‘Law’ in International Affairs, 10 Transnational Law & Contemporary Problems 1 (Spring 2000), at 23, apparently not up at Westlaw):

The basic wrong turn in policy began with the Bush Administration’s [Bush Sr.] decision in 1991-92 to judicialize the Pan Am 103 matter rather than to use force, in effect treating this Libyan act of terror like a domestic murder case, rather than the political-military attack that it was.

This raises a whole set of questions about the legal and political role of the Security Council (I discuss them at greater length in this article.) Ruth remarks in her column that the Lockerbie trial chamber was organized under pressure of Security Council resolutions (SC Resolution 731 (1992) deploring Libya’s lack of cooperation with investigators, and SC Resolution 748 (1992) imposing sanctions on Libya, and she notes what Bolton notes, the mobilization of lawyers, not military jets:

In response to the bombing, the Americans mobilized lawyers and diplomats. The U.S. and U.K. marched to the U.N. Security Council to demand the arrest of the Libyan operatives, and pressed that they be extradited for prosecution–for at the time, and even now, there were no international criminal courts with jurisdiction. In reply, Libya hired a former U.N. legal counselor to file suit before the International Court of Justice in The Hague, claiming the right to try its own state-commissioned crimes in its own courts.

The Libyan claim was ultimately defeated, by dint of the ICJ’s required deference to a mandatory Security Council resolution. So Colonel Muammar al-Qaddafi, the honcho of the Socialist People’s Libyan Arab Jamahiriya, proposed another solution he could live with. He called for a specially created criminal court to convene in the Netherlands, seating Scottish judges and applying Scottish law.

As Bolton observed in his article, although these Security Council resolutions were

hailed at the time as great victories, in fact, there was little enthusiasm for the initial Council condemnation of Libya, and there was barely enough support for the subsequent imposition of sactions. Since 1992 [writing in 1999], the United States has faced continuous pressure to scale back or eliminate the sanctions on any pretext, largely from Europeans who would rather trade with Moammar Ghadhafi than punish him for murder.

One wonders, therefore, whether the hints and rumors tossing about now of oil deals for the UK have any merit, in light of the long history. That problem of politics has always plagued the Security Council - but putting it as such is oddly ambiguous. If you are inclined to see the UN as a Platonic ideal (to borrow from Michael Glennon), then you are likely to brush by mere politics. But if you are inclined to see the UN as merely and realistically political, then you are equally likely to be unfazed that the Security Council is about politics, not law. Either way, Libya, and its enabler states, get a pass.

A newer feature of the politics of the Council has arisen since Bolton wrote. In the past, in the 90s, for example, Security Council resolutions - many of those dealing with Saddam, for example - were passed by the Council in relatively strong form precisely because they were tacitly understood to be ‘just talk’. They were an alternative to using force; cover for not acting. Then came the GWB administration, which used the long succession of Saddam-resolutions as part of its legal basis for using force. This seemed to take other states by surprise; they had politically gone along in large part way-back-when because the language of the resolutions was a tradeoff for not using force, not a basis for it, no matter how strong the surface language. So today states (particularly Russia and China, but not just them) have a very different understanding of how strong resolutions should be viewed - they might, it turns out, be appealed to years later as part of a case for using force and therefore need to be treated as such, not merely as a gift to some SC member in present need of saying something as a substitute for actually doing something.

Finally, the legal status of apparently binding Security Council resolutions is itself under some pressure from Europe. We have discussed here the decisions of the European Court of Justice (Kadi) that subject even apparently binding commands of the Security Council under its Charter authority to interpretation and being contravened and set aside on human rights grounds by the ECJ or other courts; a flood of scholarship is emerging in Europe to explain those doctrines (curiously largely uncommented in the US academic literature), and there is not a clear consensus on what they mean.

However, it is not beyond all political imagination to suggest the feature of those decisions is a Security Council decision that is seen to be taken at the behest and for the benefit of the superpower, the US. A court might talk loftily about how everything is subject to human rights considerations, but it is not beyond imagining that, in a European court’s eyes, even without recourse to human rights claims, Security Council resolutions seemingly to benefit one P-5 member, even assented to by the Council, and even apparently binding under the Charter, should be seen as somehow less binding than something that seems to be more to the benefit of the whole, and not the product of bargaining.

It is not a crazy moral position, in fact - but seems to me to have little support in the way that Europe has traditionally seen the Charter as a legal document. What it does seem to me to be is a sideways move to reform the role of the P5 without actually altering its composition. The way in which sanctions against Libya were seen from by European states from the get-go, despite the legal command of the Security Council resolutions, suggests that the Kadi decision need not necessarily be understood as a matter of human rights, or at least not exclusively as a matter of human rights, but instead as both a simple political proposition about global consitutionalism by the EU, but also an indirect move to alter power relations among the P5 by judicializing them. The history of Libya and Pan Am 103 in the Security Council is not irrelevant to that.

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Clunk . . . Crash?

The federal government has enlisted employees of the Federal Aviation Administration's air-traffic control unit and various federal contractors to help clear the backlog of "cash-for-clunker" rebates owed to auto dealers, according to this report.

An FAA memo obtained by The Washington Times reads in part:

"We have been asked to provide volunteers to assist with this high-visibility program … employees may work during regular business hours (providing mission allows) and/or overtime.

"The [Air Traffic Organization] has been asked to provide a list of 100 employees to assist. They will be asked to attend a two-hour training course this afternoon. The task is expected to take 5 to 10 days."

But Ms. Zuckman said that only support personnel, such as in finance and operations, were asked to work on the clunkers program.

"Nobody is being ordered to do anything; we weren't asking air traffic controllers to leave their posts. We're using budget and accounting people primarily," she said.

"It was made clear that no core mission activities of the FAA are to be affected by this effort, especially as they could relate to air traffic operations."

When the program was created, the federal government promised to repay dealers within seven days, yet as of last week only 7 percent of all claims had been paid. Moreover, some dealers are finding their claims rejected without explanation, according to this report (to which I linked last week).

Laura Sodano, a sales manager at Curry Chevrolet in Scarsdale, N.Y., said dealers were not told why their applications had not been approved and were having to review the entire form to determine what went wrong.

“I don’t know one dealership that’s gotten paid yet,” Ms. Sodano said. “If they run out, we’re in trouble. It’s bringing us a lot of traffic, but it’s not a very good program.”

Among consumers, the program has created far more interest than experts had predicted. It was initially given $1 billion of funding, enough for about 250,000 sales, and an end date of Nov. 1. That money was used up in a little more than a week, and Congress quickly approved $2 billion more to extend it.

Transportation officials say they believe reimbursement requests of about $400 million on completed sales have yet to be filed, leaving about $600 million in credits still available for the final weekend, after removing $100 million for administrative costs.

If the funding is exhausted before all reimbursements are made, some dealers — and possibly G.M. — could end up having to write off the unpaid credits. The administration does not plan to seek a third installment of funding.

More from AllahPundit.

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The 70th Anniversary of History's Most Evil Treaty:

Today is the 70th anniversary of the Nazi-Soviet Pact, the infamous agreement in which Nazi Germany and the Soviet Union tried to carve up Eastern Europe between them. Historian Orlando Figes has a good summary of its significance here. History is full of cynical international agreements, many of which led to terrible results. But I doubt anyone can point to a worse treaty than this one.

The agreement set the stage for history's bloodiest war, which killed some 50 million people. Without assurance of Soviet noninterference, the Nazis could not have gone to war against Britain and France (they realized that, in 1939, they lacked the military power to fight a two-front war). The agreement also enabled both powers to inflict horrible atrocities against the people of the Eastern Europe states they occupied as a result. Everyone knows about the Nazi part of these crimes. The Soviet part is less well-known, but almost equally heinous. For example, the treaty gave the Soviets the "right" to occupy the Baltic States, and Eastern Poland. This led to the extermination of some 3% of Estonia's population, and the deportation to Gulags of many more. The other areas occupied by the USSR (including a large part of eastern Poland) suffered comparable atrocities.

It's hard to precisely calculate the overall harm caused by the Nazi-Soviet Pact. But the death toll surely runs into the millions.

Defenders of Stalin's decision to sign the pact claim that he needed to do it because the British and French otherwise might have simply stood aside and let Hitler attack him. It's hard to defend the Anglo-French appeasement of the late 1930s. But at least they did not actively collaborate with Hitler, as Stalin chose to do. Moreover, Hitler could not have attacked the USSR in 1939 without going through Poland, which the British and French had just guaranteed against German attack. Finally, by allowing Hitler to deal with his Western enemies before having to worry about the Soviets, Stalin set up a situation where the Nazis could, in 1941, attack the USSR without having to face any other opponent on in Europe on land. By signing the pact with Hitler, Stalin himself helped create the absence of a "second front" that he later spent much of World War II complaining about.

On a more personal note, my great-uncle was killed in the Russo-Finnish War, just a few months after the pact was signed. Finland was, of course, one of the states allocated to Soviets under the agreement with the Nazis. It is unlikely that Stalin would have dared to attack Finland without first being assured of German noninterference. Thus, my relative became one of the millions who lost their lives as a result of history's most infamous agreement.

The European Parliament has proposed that August 23 be declared a day of remembrance for the victims of totalitarianism. It's definitely an appropriate way to mark the occasion.

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I-Phone Bleg:

My fiancee is considering getting an Apple I-Phone. Would it be worthwhile to buy the more expensive, but faster and more powerful, I-Phone 3Gs, or simply to buy the regular, cheaper I-Phone 3G? I suspect we have exactly the kind of readership that is likely to have expertise on a question like this. I appreciate any advice you might have.

UPDATE: Those commenters arguing for the 3Gs essentially cite 2 major advantages: the camera and greater speed. It so happens that we don't really need the camera. So the only remaining question is whether the superior speed makes a big difference when you are just surfing the internet (the major activity that my fiancee intends to use the I-Phone for, other than calling of course). I invite our tech-savvy readers to comment on this narrower question.

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