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Saturday, September 12, 2009

How Law Schools Can Help the Planet:

Gerard Magliocca has an idea how law schools can help the environment.

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TIAA-CREF Divests from Israeli Company--Not::

A group of left-wing professors sent a letter to TIAA-CREF asking it to divest from Africa Israel because it allegedly supports settlement activity on the West Bank. TIAA-CREF responded that it had already sold the small stake it owned in Africa Israel. Left-wing activists are now spinning this as "divestment" from an Israeli company, and some of the media are biting. But near as I can tell, all it means is that TIAA-CREF had sold the stock, as it buys and sells dozens of stocks every year, without regard to a letter it received thereafter. I myself have sold several Israeli stocks this year, but not because I'm divesting.

According to the Chronicle of Higher Education:

But this afternoon a TIAA-CREF spokesman said the pension company "no longer owns shares in Africa-Israel Investments Ltd." The spokesman, Chad Peterson, said that, "earlier this year, the CREF Stock Account had an extremely small investment" in Africa-Israel, but the holding has since been sold.... TIAA-CREF posted a statement on its Web site reiterating Mr. Peterson's assertions and noting that the "small number of shares" of Africa-Israel have not been part of the CREF account since June 30, when they were dropped from an emerging-markets index that the account tracks.

Doesn't sound remotely like "divestment" to me.

Dishonest activist groups + credulous media equals bogus stories.

Disclosure: My sister-in-law works for Africa Israel.


The Student Loan Market:

Lost in the shuffle among health care cost debates, the future of Fannie and Freddie, Ginnie Mae, the FHA, and so on, the student loan market is quietly shifting to become a federal government monopoly. The Wall Street Journal notes this in an editorial today, September 12, 2009, "The Quietest Trillion." The title?:

The furor over President Obama's trillion-dollar restructuring of American health care has left his other trillion-dollar plan starved for attention. That's how much the federal balance sheet will expand over the next decade if Mr. Obama can convince Congress to approve his pending takeover of the student-loan market.

The Obama plan calls for the U.S. Department of Education to move from its current 20% share of the student-loan origination market to 80% on July 1, 2010, when private lenders will be barred from making government-guaranteed loans. The remaining 20% of the market that is now completely private will likely shrink further as lenders try to comply with regulations Congress created last year. Starting next summer, taxpayers will have to put up roughly $100 billion per year to lend to students.

The private student loan market has been around for decades, so a natural question is how did it come to this? According to the Journal's editorial:

For decades, loans carrying a federal guarantee have been the most common way of borrowing for college. After raising money in the private capital markets, lenders made the loans, paying a fee to the government for each one. The government covered most of the cost of defaults while allowing the private lenders to make a regulated return.

The system broke down after Congress in 2007 legislated a return so low that no private lenders could make money holding these assets. To keep the money flowing to student borrowers, the government began buying the loans from private originators last year. But this larger federal role was intended to be temporary, with an expiration date next summer. The news from Washington now is that rather than scaling back federal involvement, the pols want the U.S. Department of Education to be the exclusive banker to America's college students.

Again according to the Journal editorial, the problem of having the government become the direct lender is that student default rates go up drastically - even though under current law, student loans are not, for example, generally dischargeable in bankruptcy. There are other questions not addressed in the WSJ editorial - how does the federal government plan to repackage those loans, and do what with them? If the credit quality deteriorates, is the federal government on hook not just for the unpaid student loans but for any losses on downstream securities based on them?

The government has been claiming lower default rates than private lenders, but most government loans have been to students at four-year colleges. The private lenders have serviced a higher percentage of students at community and two-year colleges, where defaults are more common regardless of lender. If the feds are now making and owning all such loans, expect default rates to soar. When the government hires contractors to collect on its loans, it pays them for simply calling the borrower, regardless of the result. Private lenders, on the other hand, make money from a performing loan and have a greater incentive to do careful underwriting and aggressive collection. The government will nonetheless start spending these illusory "savings" immediately, and this spending is certain to top official estimates.

This has been a topic of discreet discussion at universities among senior administrators, I think we can safely assume. How could how students pay for school not be? Mostly staunch Obama supporters, in my experience, these administrators and university leaders nevertheless have a strong suspicion that the federal government direct supplying university tuition funds will be followed by interventions in university management. Starting with price controls on tuition - it is not exactly a secret that subsidies aimed to aid student tuition bills largely wind up in school hands as tuition increases. Discussion among university administrators I know has centered on how to diversify revenue streams on the assumption that the federal government will try to control costs at the universities, in part to make up for losses by defaulting ex-students (or by defaulting ex-students at other institutions, such as two year colleges or technical schools where default rates are far higher; some of the issues here are akin to the insurance pool issues of health care reform, such as pooling of otherwise sharply different risk pools). (cont. below fold)

(show)

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A Protectionist President?

Given the caliber of President Obama's economic team, I have remained somewhat hopeful the Administration would avoid the protectionist impulse within the Democratic Party. So I was dismayed to read about the apparent decision to impose tariffs on Chinese tires. Particularly troubling, as the WSJ reports in an editorial today, is that the Administration has chosen to utilize a rarely (if ever) used provision of trade law, Section 421, setting a bad precedent and encouraging other industries to seek equivalent "relief." President Bush was far-from perfect on trade policy (one of many disappointments), but he rejected all four of the Section 421 petitions he received. I hope this latest decision is an aberration, but I am not optimistic.

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Friday, September 11, 2009

GAO Report on Fannie Mae and Freddie Mac:

I've blogged several times about the currently unclear and undecided plans of the Obama administration and Congress for Fannie Mae and Freddie Mac. So I was interested to see this new report by the GAO outlining the issues and laying out what it sees as the general options. The report runs some 60 pages, and I've only had a chance to read it rapidly. It does not seek to do more than provide background and options, rather than arguing for a particular recommendation for how to resolve their GSE status. However, on my quick read, it is pretty well done, cogent and written in plain language. For that matter, the news summary of the report that first drew me to it, by Jody Shenn in today's Washington Post (September 11, 2009, "GAO Analysis Skeptical About Privatizing Fannie, Freddie") is a pretty good, clear summary.

At analytical bottom, however, and as I said here before, the choices come down to some version of fully privatize, fully government agentize, or continue as some form of mixed GSE. As the GAO notes, each of them has problems. The worst option is to return them to active GSE status as profit-seeking, shareholder-owned entities but with a government guarantee (both for the debt they issue via securitization as well as for the portfolios they invest in) and hence a subsidized and distorted capital cost, and great susceptibility to politicization (both to be corrupted by Congress and to corrupt it). The second worst option is to do nothing and continue to watch the portfolios slide in government hands while contributing little to getting the securitization markets up to speed with better risk and capital management.

(The Treasury White Paper on financial reform, out a few months ago, does not offer a prescription for what to do with Fannie and Freddie. The administration has said it will have a plan to offer by early next year. If you follow the articles in the WSJ and Washington Post, there is not much clarity, to the public anyway, of where the administration might decide to go.)

(As I've also noted before, but as this recent Wall Street Journal news article by Nick Timiraos lays out in what might turn out to be chillingly prescient detail, there is another mortgage finance situation rapidly evolving - the FHA - and its adventures into subprime, little money down, etc., etc., home mortgages.)

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Political Terrorism in America:

Very bad, not just for the victims, but for public debate more broadly; I very much hope that it remains an aberration, or else the consequences will be bad for speakers with a vast range of views. From CNN:

Authorities have charged an Owosso, Michigan, man with two counts of first-degree premeditated murder in the Friday shooting deaths of an anti-abortion activist and another man, a prosecutor's office said.

Authorities say the suspect, Harlan James Drake, was offended by anti-abortion material that the activist had displayed across from [a local high] school all week.

Drake, 33, is accused of shooting anti-abortion activist Jim Pouillon, 63, and Michael Fuoss, 61, who were killed in separate locations Friday morning, the prosecutor's office in Shiawassee County said.

Authorities also have charged Drake with a felony firearm count and carrying a dangerous weapon with unlawful intent, the prosecutor's office said.

Drake also is suspected of "attempting to locate a third victim without success," the office said....

I've labeled killings and threats against abortion providers as anti-abortion terrorism before (see here, here, and here). This likewise appears to be a domestic terrorist attack, though as I said I hope that it will remain a rare isolated incident. (I say "appears to be" simply in case the initial accounts prove incorrect, or in case the defendant turns out to be legally insane or some such.)

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Luigi Zingales on Threats to the Future of American Capitalism:

Prominent finance economist Luigi Zingales has an excellent essay outlining some of the dangers facing us as a result of the political response to the current economic crisis [HT: my colleague Josh Wright]:

While everyone benefits from a free and competitive market, no one in particular makes huge profits from keeping the system competitive and the playing field level. True capitalism lacks a strong lobby.

That assertion might appear strange in light of the billions of dollars firms spend lobbying Congress in America, but that is exactly the point. Most lobbying seeks to tilt the playing field in one direction or another, not to level it. Most lobbying is pro-business, in the sense that it promotes the interests of existing businesses, not pro-market in the sense of fostering truly free and open competition. Open competition forces established firms to prove their competence again and again; strong successful market players therefore often use their muscle to restrict such competition, and to strengthen their positions. As a result, serious tensions emerge between a pro-market agenda and a pro-business one, though American capitalism has always managed this tension far better than most....

We thus stand at a crossroads for American capitalism. One path would channel popular rage into political support for some genuinely pro-market reforms, even if they do not serve the interests of large financial firms. By appealing to the best of the populist tradition, we can introduce limits to the power of the financial industry — or any business, for that matter — and restore those fundamental principles that give an ethical dimension to capitalism: freedom, meritocracy, a direct link between reward and effort, and a sense of responsibility that ensures that those who reap the gains also bear the losses. This would mean abandoning the notion that any firm is too big to fail, and putting rules in place that keep large financial firms from manipulating government connections to the detriment of markets. It would mean adopting a pro-market, rather than pro-business, approach to the economy.

The alternative path is to soothe the popular rage with measures like limits on executive bonuses while shoring up the position of the largest financial players, making them dependent on government and making the larger economy dependent on them. Such measures play to the crowd in the moment, but threaten the financial system and the public standing of American capitalism in the long run. They also reinforce the very practices that caused the crisis. This is the path to big-business capitalism: a path that blurs the distinction between pro-market and pro-business policies, and so imperils the unique faith the American people have long displayed in the legitimacy of democratic capitalism.

Unfortunately, it looks for now like the Obama administration has chosen this latter path. It is a choice that threatens to launch us on that vicious spiral of more public resentment and more corporatist crony capitalism so common abroad — trampling in the process the economic exceptionalism that has been so crucial for American prosperity. When the dust has cleared and the panic has abated, this may well turn out to be the most serious and damaging consequence of the financial crisis for American capitalism.

The distinction between a "pro-business" agenda and a pro-market one is a crucial point that I have often emphasized myself (see here and here). Unfortunately, it is routinely ignored or misunderstood. For the reasons Zingales points out, business interests regularly lobby in favor of government intervention whenever they think it might protect them from competition or secure government-provided privileges.

Such lobbying is of course routine. But it is particularly dangerous in the midst of a crisis atmosphere, when the combination of fear, voter ignorance, and government officials seeking to expand their power creates unusually attractive opportunities for interest groups to lobby for special privileges for themselves under the guise of emergency measures. I discussed these issues in greater depth in a series of posts last fall (see here, here, and here). So far, little has happened to alleviate my concern that the combination of economic crisis, voter ignorance, interest group lobbying, and united Democratic control of the federal government is likely to lead to a dangerous expansion of government power over the economy. In many cases, that expansion is taking the form of measures that benefit big business and other powerful interest groups at the expense of the general public.

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Law Books for Prisoners: I am happy to announce that the new edition of the LaFave, Israel, and King one-volume Criminal Procedure hornbook has been published, and that this time, it is LaFave, Israel, King, and Kerr. As one of the authors, I have been given twenty-five copies of the new work by the publisher. That's about twenty-two more copies than I need, as I only need one for work, one for home, and one for mom and dad. So the question is, what to do with the extra 22 treatises sitting in my office?

  One idea I had was to give them to prison law libraries. Maybe I have seen The Shawshank Redemption too many times -- it's my favorite move ever -- but I would think such a volume could be useful and desirable to prisoners and more useful than for any other likely audience. I was able to find a number of Books to Prisoners programs on the web, but I didn't know if any of them are better than any others. And I also noticed that some of the programs require that the books be paperbacks, when this treatise is a hardback book. (I suppose ripping off the cover could turn a copy into a softcover book pretty quickly, but I'm not sure if that counts.)

  So I need your help: Do any readers have any experience with any of these programs, or have any ideas of the best way to get about 20 copies of a new criminal procedure treatise into prison libraries -- or whether copies of the treatise would be considered valuable additions to the libraries in the first place? Thanks for your help.
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U.K. Prime Minister Gordon Brown Apologizes for Conviction of Alan Turing:

The statement:

2009 has been a year of deep reflection — a chance for Britain, as a nation, to commemorate the profound debts we owe to those who came before. A unique combination of anniversaries and events have stirred in us that sense of pride and gratitude which characterise the British experience. Earlier this year I stood with Presidents Sarkozy and Obama to honour the service and the sacrifice of the heroes who stormed the beaches of Normandy 65 years ago. And just last week, we marked the 70 years which have passed since the British government declared its willingness to take up arms against Fascism and declared the outbreak of World War Two. So I am both pleased and proud that, thanks to a coalition of computer scientists, historians and LGBT activists, we have this year a chance to mark and celebrate another contribution to Britain’s fight against the darkness of dictatorship; that of code-breaker Alan Turing.

Turing was a quite brilliant mathematician, most famous for his work on breaking the German Enigma codes. It is no exaggeration to say that, without his outstanding contribution, the history of World War Two could well have been very different. He truly was one of those individuals we can point to whose unique contribution helped to turn the tide of war. The debt of gratitude he is owed makes it all the more horrifying, therefore, that he was treated so inhumanely. In 1952, he was convicted of ‘gross indecency’ — in effect, tried for being gay. His sentence — and he was faced with the miserable choice of this or prison — was chemical castration by a series of injections of female hormones. He took his own life just two years later.

Thousands of people have come together to demand justice for Alan Turing and recognition of the appalling way he was treated. While Turing was dealt with under the law of the time and we can’t put the clock back, his treatment was of course utterly unfair and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted as he was convicted under homophobic laws were treated terribly. Over the years millions more lived in fear of conviction.

I am proud that those days are gone and that in the last 12 years this government has done so much to make life fairer and more equal for our LGBT community. This recognition of Alan’s status as one of Britain’s most famous victims of homophobia is another step towards equality and long overdue.

But even more than that, Alan deserves recognition for his contribution to humankind. For those of us born after 1945, into a Europe which is united, democratic and at peace, it is hard to imagine that our continent was once the theatre of mankind’s darkest hour. It is difficult to believe that in living memory, people could become so consumed by hate — by anti-Semitism, by homophobia, by xenophobia and other murderous prejudices — that the gas chambers and crematoria became a piece of the European landscape as surely as the galleries and universities and concert halls which had marked out the European civilisation for hundreds of years. It is thanks to men and women who were totally committed to fighting fascism, people like Alan Turing, that the horrors of the Holocaust and of total war are part of Europe’s history and not Europe’s present.

So on behalf of the British government, and all those who live freely thanks to Alan’s work I am very proud to say: we’re sorry, you deserved so much better.

Geoffrey Pullum (Language Log) elaborates:

Turing did indeed deserve so much better. He created modern theoretical computer science; opened fundamental new areas of mathematical logic; made very important contributions to other areas of mathematics (e.g., the technique known as Good-Turing frequency estimation in statistics); and most importantly, he gave up his academic work during the Second World War to work at Bletchley Park on the extremely difficult task of decrypting German communications encrypted with the Enigma machine. The Bletchley Park team did succeed, and thus the Royal Navy became able to read the content of all the Nazis' messages to U-boats in the North Atlantic. It was a crucial turning point in the war. But a mere seven years later, a young man shared Turing's bed for the night in Manchester, and later helped someone burgle the house, and Turing naively reported the theft to the police. The police reaction was to arrest Turing, because they guessed what had been going on. "Gross indecency" was the charge (it is the British legal euphemism for cocksucking). Turing had a choice between serving prison time or agreeing to chemical castration, a medicalized "cure" for his presumed abnormality. He bore the latter for two years and then took cyanide. The way British mid-20th-century sex law drove him to suicide was genuinely something for the country to be ashamed of. It was good to see the official apology (which hundreds of eminent scientists had asked the Prime Minister to express).

Plus, as Pullum says, "That's how to say it ...: not a bunch of evasive mumbling about how unfortunate it all was, but a simple 'We're sorry.'"

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Religious Arbitration of Civil Disputes:

For an example of how this works in the U.S., see Easterly v. Heritage Christian Schools, Inc. (S.D. Ind. Aug. 26, 2009). As the case name suggests, this involved Christian arbitration, but the secular legal principles would be the same for Muslim arbitration as they would be for Jewish arbitration.

Certainly some matters might by law not be subject to arbitration; I believe that's the rule for child custody decisions in many states. Some arbitration provisions may be set aside if there's evidence that they were entered into under threat of violence or some such (though economic need or social pressure is generally not a reason for that, I think, especially since many businesses enter various contracts because of economic need or pressure from business community norms). Some remedies couldn't be implemented through arbitration. Some sorts of procedures -- perhaps including the application of procedural rules that discriminate based on the parties' sex -- might be prohibited even despite the broad deference to arbitration decisions.

But that's true for all forms of arbitration, whether secular or religious. There's certainly nothing alien to American law in having arbitration tribunals apply religious law (or for that matter the laws of foreign countries with legal systems quite different from ours). Nor is there any constitutional authorization for distinguishing Jewish and Christian arbitration from Muslim arbitration based simply on the denominations involved (though again all these arbitrations are subject to various relatively deferential but not toothless secular constraints, which may of course play out differently to the extent that different arbitral bodies operate differently).

A few relevant passages:

Easterly ... argues that “the arbitration provision in the parties’ contract provides for a process by which Ms. Easterly must forego vindication of her substantive rights guaranteed by the ADEA and ADA and Indiana contract law, and instead rely on biblical scripture to define her rights.” Easterly points to the fact that the RPCC [Rules of Procedure for Christian Conciliation] provide that “Conciliators shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process.” While it is true that “a substantive waiver of federally protected civil rights will not be upheld,” Easterly does not explain how this provision constitutes a waiver of her rights under the [Americans with Disabilities Act] and the [Age Discrimination in Employment Act]. [Substantive rights under antidiscrimination law, as opposed to rights under many other kinds of law, generally cannot be waived up front by contract. -EV] The provision requires the arbitrator to take into consideration the applicable law, and Easterly fails to articulate how biblical principles might conflict with that law to her detriment. In the absence of such a showing, the Court declines to find that submission to arbitration under the RPCC will deprive Easterly of her right to vindicate her statutory rights.

Easterly also argues that “[t]he agreement to biblically-based arbitration in Ms. Easterly’s teaching contract cannot be enforced because the processes are structurally biased and procedurally inadequate.” However, Easterly again fails to articulate how this is so. “The Supreme Court has repeatedly counseled that the FAA leaves no room for judicial hostility to arbitration proceedings and that courts should not presume, absent concrete proof to the contrary, that arbitration systems will be unfair or biased.” She further objects to the fact that the RPCC differ from the Indiana Alternative Dispute Resolution Rules with regard to confidentiality. However, again, “under the FAA the parties are free to agree to any governing rules, and the courts will enforce whatever system they choose.” ...

The FAA “is a congressional declaration of a liberal federal policy favoring arbitration agreements,” and “that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Easterly has pointed to nothing about the arbitration agreement in this case that would override this policy.

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"Why Men Love Crazy Women":

Ami Angelowicz (The Frisky) theorizes on this. I'm not sure whether she's right, but it struck me as amusingly put, especially as to item 2. Then there's always the "crazy enough to sleep with me" option.

Thanks to InstaPundit for the pointer.

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Can Iraqi Nationals Sue Defense Contractors for Abu Ghraib Abuses?

Today the U.S. Court of Appeals for the D.C. Circuit released its decision in Saleh v. Titan Corp., a suit by Iraqi nationals against two defense contractors that provided services at the Abu Ghraib prison facility. A divided panel held that the plaintiffs' state-law claims were preempted and affirmed the dismissal of their claims under the Alien Tort Statute. Senior Judge Silberman wrote for the majority, joined by Judge Kavanaugh. Judge Garland wrote a lengthy dissent.

UPDATE: BLT reports on the decision here.

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Left/Right could support health bill with tort reform. Lefts wants out of Aghanistan; Right wants it:

This week's National Journal poll of political bloggers asked, "Could you see yourself supporting health care reform if it included tort reform"? Sixty-two percent of the Right and 50% of the Left said "yes." (With 36% "no" and 14% maybe.) The Right actually liked tort reform, while the Left was willing to accept it as an unpleasant price to pay.

I wrote: "Sure. Depends on what else is in the bill. The more that it removes restrictions on consumer choice, without imposing new taxes or additional spending, the better."

Question 2 was "Do you want U.S. troop levels in Afghanistan to rise, fall, or hold fairly steady in the coming months?" Sixty-three percent of the Right wanted a rise, while 72% of the Left wanted a fall. I was pro-rise: ""Losing Afghanistan to the Taliban would be a catastrophe. Vietnam was an important strategic loss, but Vietnam did not turn into a base for terrorist attacks on Americans. The dominos that fell with Vietnam did not include countries with nuclear arsenals which might be turned over to terrorists for attacks on the West. Support the president!"

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So You Work for a Human Rights NGO

whose integrity is under attack in the blogosphere. Unfortunately, no one wants to defend the subject of the latest attack, your Nazi-obsessed, anti-Israel military analyst. There's only one thing to do! Resort to sock-puppetry.

Sure, if you're discovered it will add to the growing impression that your organization is dishonest and unprofessonial, but those evil Zionists would never be clever enough to trace your URL back to Human Rights Watch...

UPDATE: When I say no one, I mean no one. Even sympathetic leftists M.J. Rosenberg and Helena Cobban (who sits on HRW's Middle East advisory board) are abandoning HRW on this one. Okay, not quite no one; it's HRW, its sock puppets, and Professor Kevin Jon Heller of University of Melbourne, who shills for HRW at every opportunity (while usually failing to mention his work for HRW on Iraq, assumedly with the very same Middle East staff he defends from criticism), against the world (and common sense).

ANOTHER UPDATE: And HRW has lost another past knee-jerk defender, Matt Duss. [And add Daniel Levy, too.]

MORE UPDATE: This may not be HRW's first experience with sock-puppeting.


High Approval Rating for the Supreme Court:

According to this recent Gallup poll, most Americans approve of the way the Supreme Court is doing its job. 61% of Americans approve, compared to 28% who disapprove. This approval rate is slightly higher than in the past few years, apparently because of more support from Democrats. Gallup also speculates that the lack of controversial decisions by the Court last year may have contributed to a high approval rating.

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From Not Dispositive To Irrelevant:

Here's a passage from Doe v. Reed, the opinion I criticized below. I don't think the court needed to reach this issue, because I think there's no need for strict scrutiny when state law chooses to disclose the names of people who take legally operative steps such as signing initiative, referendum, or recall petitions. But I want to set that aside here, and focus on the argument the court made -- an argument with a structure that I often hear (especially from law students), and that bears a bit of explicit analysis:

In the alternative, Defendants assert that there exists a second “compelling” interest in favor of disclosure. Defendants argue that the electorate is entitled to know “who is essentially lobbying for their vote, and thus, who likely will benefit from the measure.” But this argument is unavailing because neither the Court nor the parties have the ability to identify whether an individual who supports referral of a referendum to the next ensuing general election actually supports the content of the referendum or whether that individual simply agrees that the referendum should be placed before the voting public. In other words, the identity of the person who supports the referral of a referendum is irrelevant to the voter as the voting public must consider the content of the referendum and be entitled to a process by which it can ensure that the petitions are free from fraud.

Note how the court argues here: (1) A person could sign a petition simply because he "agrees that the referendum should be placed before the voting public," and not because he "supports the content of the referendum." (2) "In other words," the identity of the petition signers "is irrelevant" to the voter who seeks to figure out "who is essentially lobbying for" the proposal.

But statement 2 is not at all just "other words" for statement 1. Statement 1 correctly asserts that signing a petition is not dispositive evidence of the signer's views on the merits. Some people do sign petitions because they think the public is entitled to vote on the question, even though they'll vote against the proposal; some people might expect the proposal to lose, and might sign the petition precisely because they want a statewide vote in which the proposal loses; some people might have deeper political reasons for signing, perhaps because they think the proposal's presence on the ballot will bring out voters who will vote the right way on some other measures or in candidate races; some people might just have been buffaloed into signing something; and so on.

But this hardly means that the identity of the signers is irrelevant to determining who is lobbying for the proposal. If, for instance, it turns out that 60% of a petition's signers are registered Democrats and 10% are registered Republicans, in a state that's generally split 50-50, voters can reasonably conclude that the petition is probably a project of Democrats, and would thus be more likely serve the interests of traditionally Democratic interest groups -- relevant information to many voters, especially if there's a dispute on what the law's effects likely will be.

Now if the argument were simply that the connection isn't strong enough to pass muster under strict scrutiny (the test that the court is applying here), that would be plausible. Likewise, if the argument were that the interest in getting such information about the initiative's backers wasn't compelling enough to satisfy strict scrutiny, that would be plausible, too. (My disagreement with the court on the bottom line stems from my view that strict scrutiny shouldn't apply here.) But this leap from (1) the signature being an imperfect proxy for backing the merits of the petition to (2) its being irrelevant to deciding who is backing the merits of the petition is not sound.

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Federal Judge Temporarily Restrains Release of Names of Anti-Domestic-Partnership Petition Signers in Washington States:

The decision, in Doe v. Reed, was just handed down yesterday, and is based on the signers' First Amendment rights to speak anonymously; the decision basically keeps in place the temporary restraining order handed down July 29, but is accompanied with a detailed opinion containing the court's reasoning.

That reasoning strikes me as unpersuasive, for the same reasons I mentioned in late July; I don't think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state's laws (or the state's elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don't think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect.

I agree that there are plausible plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people's fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.

To be sure, unlike with a secret ballot, a petition signature would not be fully secret -— for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Still, the judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option, and the court's opinion here doesn't persuade me to the contrary.

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9/11:

fema.gov

My views, expressed at the time in the TLS, have not changed very much:

Abstract: This article was offered in 2001 as the Times Literary Supplement's main commentary the week following 9-11. The essay argues that 9-11 required war as a response, and challenges views expressed in the days following 9-11 by commentators such as Anne-Marie Slaughter and Michael Ignatieff that the proper response by the United States should be criminal law in nature - either international criminal law, through international tribunals or procedures, or domestic criminal law of the kind pursued in the first 1993 World Trade Center bombing. It further argues against the functional pacifism of many Christian theologians who, while approving of just war principles in theory, never manage to approve any actual war in practice. At the same time, the essay observes that the war on terror declared by President Bush, while comprising one or more particular wars, starting with war to topple the Taleban regime in Afghanistan, is a metaphorical war, akin to the War on Drugs, rather than an actual war. Appearing just a few days after 9-11, this essay makes a case for war as war, for soldiers and not policemen against terror.

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Fine for Displaying Israeli Flag in a Spontaneous Counterdemonstration at an Anti-Israel Demonstration:

The Jerusalem Post reports, apparently relying on this German-language source:

A local district court in the West German city of Bochum fined a student 300 Euros on Wednesday for displaying an Israel flag at a demonstration organized by Muslim organizations against the IDF Operation Cast Lead in January. According to Der Westen, a regional paper in Bochum, the public prosecutor termed the Israeli flag as "provoking" within a special situation....

According to Der Westen, the local district court judge deemed the protest of the five activists expressing solidarity with Israel as a "dangerous situation."

A spokesman for the district court, Volker Talarowski, told the Post that there was a "violation of the right to assembly" and the court's decision was issued "independent of a political motivation." Talarowski added that the pro-Israel demonstrators failed to register their protest 48 hours before the event.

Yet the student, who is appealing the fine, said a special regulation permits "spontaneous" demonstrations without a pre-registration. In response to a hardcore anti-Israeli demonstration in Bochum attended by 1,600 protesters on January 17, the student, along with four pro-Israeli activists, displayed a banner stating "Against anti-Semitism and fascism: Solidarity with Israel" as well as the Israel flag....

I'd much appreciate any translation of the source, or correction or amplification of the Jerusalem Post article, from people who know German. Naturally, if anyone can find the court decision, and the relevant regulations, I'd also much appreciate seeing those. Thanks to Avi Bell for the pointer.

Related Posts (on one page):

  1. Fine for Displaying Israeli Flag in a Spontaneous Counterdemonstration at an Anti-Israel Demonstration:
  2. Criticizing Islam and Mohammed Is a Crime in Finland:
  3. Now There's a Law That's Sure To Reduce Ethnic and Religious Tensions:
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Conservatives and the civil rights movement:

Tim Wise is a British writer who is considered by many people to be an insightful expert on issues regarding race. However, in a recent essay, he displays a significant gap in his knowledge about the American civil rights movement. Expressing his dismay about the criticism of Van Jones, Wise concludes:

Make no mistake, had they been old enough in those days, Beck and every modern-day movement conservative would have stood with the segregationists, with the bigots, with the mobs who burned the buses carrying freedom riders. They would have stood with the police in Philadelphia, Mississippi, even as they orchestrated the killing of Andrew Goodman, James Chaney and Mickey Schwerner. They would have stood with Bull Connor in Birmingham. How do we know? Easy. Because not one prominent conservative spokesperson of that time did the opposite. Not one. That's who they are. And the minute you forget that, the minute you insist on treating them better than they would treat you, the minute you insist on playing by rules that they refuse to as much as acknowledge, all is lost. They do not believe in democracy. They believe in power. White power.
Yet in fact, actor Charlton Heston, who later became President of National Rifle Association (and thus a leading "modern-day movement conservative" according to many people) marched with Martin Luther King.

Undeniably one of the most prominent conservatives of the sixties with Senator Everett McKinley Dirksen (R-Il.), the Senate minority leader. He played an indispensible, leading role in the passage of the Civil Rights Act of 1964. Thanks to Dirksen's wily maneuvering, for the first time in history a filibuster of a civil rights bill was broken. Republican Senators voted 27-6 for cloture. In the House, Republicans voted for the bill 138 to 34.

I have not been able to locate an on-line roll call of the votes of all the Congresspersons. Although both parties in 1964 were more ideologically diverse than they are today, I suspect that of the 80% of House Republicans who voted yes, there must have been many solid conservatives.

This document (page 1 of the House roll call) shows an affirmative vote by Rep. John Ashbrook (R-Ohio) who was so conservative that in 1972 he ran against incumbent President Richard Nixon for Republican nomination, challenging him from the Right. Ashbrook was a founding father of the modern conservative movement: "chairman of the Young Republican National Federation from 1957 to 1959; one of the founders of the American Conservative Union, serving as chairman from 1966 to 1971; and on the Steering Committee of the Committee of One Million against the Admission of Communist China to the United Nations, whose campaign began in 1953."

I was able to find a complete list of Congresspersons in the 88th Congress. By eliminating the six Republican Senators who voted against the bill (Bourke Hickenlooper, Barry Goldwater, Edwin Mechem, John Tower, Milward Simpson, Norris Cotton), we see that there were "yes" votes from 11 conservative Republicans. (American Conservative Union ratings are on-line starting from 1971; for Senators who were still voting in 1971, the 1971 ACU rating is in parentheses): Gordon Allott (82), Peter Dominick (87), Hiram Fong (67), Len Jordan (85), Jack Miller (91), Glen Beall (74), Roman Hruska (100), Carl Curtis (100), Milton Young (89, most senior Republican), Karl Mundt, and Wallace Bennett (94).

Mr. Wise's intemperate and inaccurate words serve as a reminder about the dangers of recklessly imagining the worst of one's political opponents. This is a particularly serious problem on both sides of American politics today, as it was during the John Adams administration, and in 1850s.

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Thursday, September 10, 2009

International Criminal Court Prosecutor Opens Probe into Afghanistan NATO Actions:

The Wall Street Journal reports today that the prosecutor’s office of the International Criminal Court has begun opening investigations into allegations of war crimes and crimes against humanity by NATO forces, including US forces, in Afghanistan. The report said that the prosecutor said that it was also probing alleged violations by the Taliban. (Joe Lauria, “Court Orders Probe of Afghanistan Attacks,” WSJ, September 10, 2009.)

The prosecutor said forces of the North Atlantic Treaty Organization — which include U.S. servicemen — could potentially become the target of an ICC prosecution, as the alleged crimes would have been committed in Afghanistan, which has joined the war-crimes court. However, every nation has the right to try its own citizens for the alleged crimes, and the ICC can step in only after determining a national court was unable or unwilling to pursue the case.

Luis Moreno-Ocampo, the ICC prosecutor, said in remarks Wednesday that:

The ICC’s preliminary inquiry is “very complex,” Mr. Ocampo said. The court is trying to assess allegations of crimes including “massive attacks,” collateral damage and torture, he said, adding that his investigators were getting information from human-rights groups in Afghanistan and from the Afghan government.

Anyone following the news from Afghanistan has a good idea of what the NATO actions in question are:

Mr. Ocampo’s remarks come after NATO forces this week acknowledged that civilians were among the dozens killed in an airstrike on two hijacked fuel trucks. They were struck by U.S. warplanes after being called in by German ground command.

The killings were the latest in a series of U.S. airstrikes that have inadvertently killed Afghan civilians, U.S. officials say.

Leave aside the obvious political questions of the position this puts the Obama administration in, with regards to its oft-stated goal of getting more cooperative with, if not actually joining, the ICC. The more important legal question is what kinds of violations of the laws of war would be at issue? Moreno-Ocampo gave some indication in his remarks (emphasis added):

Mr. Ocampo said that under certain circumstances, so-called collateral damage — the inadvertent killing of civilians in a military strike — could be prosecuted as a war crime. “It’s very complicated,” Mr. Ocampo said. “War crimes are under my jurisdiction. I cannot say more now because we are just collecting information.”

That Ocampo would address directly as an issue, up-front, the prosecution of excessive but inadvertent collateral damage as such - inadvertent killing - as a war crime, rather than intentional, categorical violations of the laws of war such as the direct targeting of civilians, raises the legal stakes very considerably ....

(Update: At Opinio Juris, see my co-blogger Kevin Jon Heller's clarification and update to a couple of these issues, including that this is merely "collecting information" and is not the formal opening of an investigation. Also that a couple of the laws of war violations I mention, found in Protocol I, are not actually crimes under the ICC Rome Statute. Thanks, Kevin.)

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Hunting Violation Checkpoints:

Please note the UPDATE to the Hunting Violation Checkpoints post below, since it brings up lower court caselaw that may well affect the bottom line analysis of the case.

Related Posts (on one page):

  1. Hunting Violation Checkpoints:
  2. Hunting Violation Checkpoints:
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OPR to Investigate Handling of Phila Voter Intimidation Case:

The Associated Press and Washington Times report that the Department of Justice Office of Professional Responsibility has begun to investigate the handling of a now-infamous voter intimidation case in Philadelphia.

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Retroactive Requirement to Register as Sex Offenders Violates Ex Post Facto Clause When Applied to Juvenile Offenders:

So holds a unanimous Ninth Circuit panel opinion, authored by Judge Reinhardt, in United States v. Juvenile Male (handed down today). As the panel said,

Congress in 2006 enacted the Sex Offender Registration and Notification Act and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents.

The panel said such retroactive application violates the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84 (2003), held that a similar requirement applied to adult offenders didn't violate the law, because it was a civil regulatory scheme and not something tantamount to criminal "punishment." (Since 1798, the Supreme Court has held that the Ex Post Facto Clause applies only to criminal and punitive retroactive legislation, and not to civil legislation or various regulatory disabilities.) But the panel distinguished Doe on the grounds that as to juvenile adjudications -- but not adult convictions -- the retroactive registration and reporting requirement "serves to convert a rehabilitative judicial proceeding, sheltered from the public eye, into a punitive one, exposed for all to see."

The decision is not implausible, especially in light of how mushy the Court's description of the civil/criminal line in Ex Post Facto Clause cases has been. Nonetheless, given that the decision holds unconstitutional some applications of a federal statute (as implemented by the Attorney General's regulations), and given that the decision is also not clearly correct, it seems likely that the U.S. Supreme Court would agree to hear the case even in the absence of a circuit split -- if, that is, the Solicitor General petitions the Court for certiorari.

It will be interesting to see what the SG's office does here. In Smith v. Doe, Justices Stevens, Ginsburg, and Breyer dissented, and Justice Souter concurred in a way that suggested that he thought Smith was a very close case. Their views on the issue even as to notification for adult convicts, and the views of the liberal panel in this case as to notification for people who had been found guilty as juveniles, suggests that the liberal decisionmakers in the SG's office are likely to sympathize with the result below. The question is both the extent to which they'll feel some obligation to defend the wishes of a past Congress (as implemented by the Department of Justice of a past Administration), and the extent to which the current Administration feels some pressure to back the application of the registration and reporting law in cases like this.

Thanks to How Appealing for the pointer.

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Hunting Violation Checkpoints:

[UPDATE: Analysis, and, in some measure the bottom line, substantially revised.] The Sacramento Bee reports:

The California Department of Fish and Game will stage three roadside checkpoints in Placer County on Sunday in an effort to catch hunting violations....

"The checkpoint is there to find violations of the Fish and Game Code," said Placer County Game Warden Brian Moore. "It could be anything — out of season hunting or animals that are fully protected — that could come through." ...

Wardens will stop vehicles to inquire about hunting and fishing activity and check licenses.

That's pretty clearly a Fourth Amendment violation, under the Supreme Court's decision in City of Indianapolis v. Edmond (2000), which held that similar checkpoints aimed at uncovering drug couriers were unconstitutional. Here's a relevant excerpt from Edmond:

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply.

For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." ... We have also upheld brief, suspicionless seizures of motorists ... at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing....

In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional....

We further indicated in Prouse that we considered the purposes of ... a hypothetical [license and registration verification] roadblock to be distinct from a general purpose of investigating crime. The State proffered the additional interests of "the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics" in its effort to justify the discretionary spot check. We attributed the entirety of the latter interest to the State's interest in roadway safety. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. We observed, however, that "[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control." Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control....

So highway checkpoints aimed at interdicting threats to highway traffic themselves are generally constitutional (which may also help explain airport searches). But suspicionless highway checkpoints aimed at catching people who commit other crimes, whether drug trafficking or illegal hunting, are generally not constitutional (unless some other exception kicks in, and none of those would apply here).

UPDATE: But while that is still my view of the best reading of Edmond, Orin pointed out to me that other cases have generally upheld hunting checkpoints. Some of these (State v. Sherburne, 571 A.2d 1181 (Me. 1990), and People v. Layton, 552 N.E.2d 1280 (Ill. App. Ct. 1990)) are pre-Edmond, and strike me as inconsistent with Edmond's reasoning. But the Ninth Circuit's decision last month in United States v. Fraire likewise upheld a hunting checkpoint at the entrance to a national park:

We first address whether the checkpoint was unconstitutional as a general crime control device. In Edmond, the city of Indianapolis operated vehicle checkpoints on city streets in an effort to discover and interdict illegal drugs. The Court held that the checkpoint program violated the Fourth Amendment because the “primary purpose” was to “uncover evidence of ordinary criminal wrongdoing.” The Court distinguished two prior cases permitting checkpoints, Martinez-Fuerte and Sitz, on the grounds that the checkpoints in those cases served purposes other than ordinary crime control. In Martinez-Fuerte, the Court upheld the constitutionality of an immigration checkpoint near the U.S.-Mexico border. In Sitz, the Court upheld the constitutionality of a sobriety checkpoint that examined all drivers passing through for signs of intoxication. In Edmond, the Court explained why the primary purpose of the checkpoints in Martinez-Fuerte and Sitz were not the detection of ordinary criminal wrongdoing. The Court acknowledged that “[s]ecuring the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals.” However, the checkpoint program in Sitz “was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue.” As for Martinez-Fuerte, the objective there was to “intercept illegal aliens” and “to serve purposes closely related to the problems of policing the border[.]”

We must now determine whether the checkpoint in this case is a general crime control device, as in Edmond, or whether it serves a different purpose, as in Sitz or Martinez- Fuerte. The district court found that the checkpoint’s purposes included “catching violators, ... deterrence, education and in turn wildlife protection.” This finding is supported by Ranger Schifsky’s testimony at the evidentiary hearing, who testified that the checkpoint was aimed at mitigating the effects of the illegal taking of animals in the park. That the checkpoint accomplished this goal through the use of law enforcement techniques does not automatically transform it into a crime control device for Fourth Amendment purposes.

The checkpoint in this case is analogous to the checkpoint upheld in Sitz and is distinguishable from the checkpoint in Edmond. A critical factor in Sitz was the close connection between the checkpoint and the harm it was seeking to prevent. Sitz (describing the “obvious connection between the imperative of highway safety and the law enforcement practice at issue” in Sitz); id. (emphasizing the “close connection to roadway safety”). Likewise, here, the checkpoint was situated at an entrance to the park and sought to counter illegal hunting within that park. Unlike the drug crimes addressed by the Edmond checkpoint, which occur throughout the nation, the wildlife offenses here are specific to national parks. Further, just as the Sitz checkpoint prevented an immediate harm to motorists, the checkpoint here prevents hunters from destroying a precious natural resource. It does so by catching poachers before they can kill additional animals, by deterring would-be poachers, and by educating the park-going public about the hunting prohibition. The goal was prevention, not arrests.

I confess that I do not find this argument persuasive, even taking into account Martinez-Fuerte (which Edmond treated as being closely linked to the special "border context"). Among other things, the goal of much criminal law is "prevention" via "deterr[ence]" and not just "arrests" when deterrence fails; and one could equally well say that the checkpoint in Edmond was aimed at preventing the "destr[uction of] a precious natural resource," which is to say the health of Americans.

At the same time, this might just reflect how unclear the administrative search/law enforcement search line is; perhaps there is no crisp line to be drawn here, and the Ninth Circuit's and California's position is as well-founded -- or as ill-founded -- as mine. And certainly in light of the Ninth Circuit decision, California is entitled to treat the checkpoint as constitutional, at least if it is "situated at an entrance to the park," as opposed to far enough away from the entrance (query how relevant this should be, but the Ninth Circuit seems to suggest that it is relevant enough to be worth mentioning).

Thanks to Gregory Broderick for the pointer, and to Orin for pointing me to the lower court caselaw on this.

Related Posts (on one page):

  1. Hunting Violation Checkpoints:
  2. Hunting Violation Checkpoints:
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Cass Sunstein Confirmed:

Cass Sunstein's nomination to be head of the Office of Information and Regulatory Affairs has been approved by the Senate in a 57-40 vote. Sunstein is one of the nation's leading scholars on regulatory issues, and there is no question that he is well-qualified for the job. At the same time, I also think that Sunstein is wrong about a great many important issues, especially in the field of constitutional law.

That said, I believe that the conservative opponents of Sunstein's confirmation are missing the fact that most of his really controversial views have little connection to the office he was nominated for. On the regulatory issues covered by OIRA, Sunstein is actually less statist and relatively more sympathetic to free market approaches than are most other liberal Democrats. For example, in his book Nudge, Sunstein urges policies that are less coercive and paternalistic than those promoted by the existing regulatory state. Sunstein also is aware of the serious public choice problems with regulation, which he has written about in several publications. Obviously, he is still far more supportive of regulation than I am. But the relevant comparison from a libertarian point of view is that between Sunstein and anyone else likely to be appointed to the same position by Obama.

It's also worth pointing out that Sunstein's nomination has been attacked by pro-regulatory groups on the left, and that socialist Vermont Senator Bernard Sanders was among those who voted against confirmation (as did the strongly anti-free market Virgina Senator James Webb). In my view, Sunstein's left-wing opponents had a better grasp of the true significance of his nomination than his conservative ones.

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A Rare Victory for a Sexually Themed Business in a Case Applying Renton Scrutiny,

in last week's Annex Books, Inc. v. City of Indianapolis, a unanimous panel decision written by moderate conservative Judge Frank Easterbrook.

A city ordinance imposed a midnight closing time for all businesses -- including ones with no on-premises video viewing or live sexual displays -- that "devote[] 25% of more of [their] space or inventory to, or obtain[] at least 25% of its revenue, from adult [i.e., sufficiently sexually themed] books, magazines, films, and devices." The city argued that such an ordinance was constitutional under the relaxed City of Renton standard of review applicable to "erogenous zoning" ordinances. But all it offered as support was speculation that the ordinance will indeed prevent crime or other secondary effects (such as lower property values), coupled with generalizations from past decisions upholding restrictions on where sexually themed businesses can locate.

The panel concluded that more evidence was necessary to support the ordinance, and the evidence had to be specifically focused on (1) the supposed effects of businesses that had no on-premises video viewing or live sexual displays, and on (2) the supposed benefits of closing time ordinances rather than location restrictions. It then remanded to the trial court "for an evidentiary hearing consistent with this opinion."

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An Uncommon (I Think) Reason to Commit Crimes at a Church:

From Newsday:

At first glance, the break-in at the Iglesia Evangelica Refugio de Salvacion looked like another sign of anti-immigrant sentiment on Long Island. [The article later notes some incidents, including an alleged murder and robbery. -EV]

The trespasser left behind three angry notes Wednesday on the altar of the Latino church, including one that said, "Hispanics don't rule, whites do."

But ... Saturday ... a Hispanic man with ties to the congregation was charged in the incident.

Suffolk County police said Christhian Munguia Garcia, 25, turned up at the church late Friday and tossed a log and a bottle at people leaving the building.

Parishioners gave chase, grabbed Garcia and held him until police arrived.

Patchogue Mayor Paul Pontieri Jr. told Newsday the altercation appeared to be the result of a dispute between Garcia and the church pastor. The pastor, the Rev. Roberto Sanchez, told the newspaper Garcia had previously been kicked out of a service because of bad behavior....

Police spokesman Tim Motz said authorities still considered the incident at the church a bias crime because it was directed at religious practice....

An attorney for Garcia ... said his anger at the church concerned "economic practices," not religion....

UPDATE: Title changed from "... to vandalize a church" to "... to commit crimes at a church."

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Criticizing Islam and Mohammed Is a Crime in Finland:

From Helsingin Sanomat:

Jussi Halla-aho, an independent member of the Helsinki City Council elected to the council on the True Finns ticket, ... [was] convicted ... of violating the sanctity of religion ... [and] fined ... EUR 330.

Soon after the sentence was passed, Halla-aho ... repeated the view that got him fined. “In my opinion Islam really is a religion that sanctifies paedophilia, and the Prophet Muhammad is a paedophile”, Halla-aho wrote. He wrote similar ideas in his blog in June last year. He said that he reached his conclusion as the result of a logical chain of thought, noting that the Prophet had a spouse who was underage.

In the view of the court Halla-aho’s arguments were not sincere, even though they appeared logical. The court also stated that logic has no significance when religious questions are involved. According to the court, Halla-aho had no intention of holding a proper discussion on negative aspects of the Islamic faith, but to desecrate the sacred values of the religion under the guise of freedom of speech. According to the court, the statement has a tendency to feed religious intolerance.

Halla-aho was also charged over another statement he made in the same blog article, according to which robbing passers-by and scrounging on taxpayers’ money might be a genetic characteristic of Somalis. In the view of Deputy Prosecutor-General Jorma Kalske, this constituted incitement against an ethnic group, but the court acquitted Halla-aho on the charge. The court found that Halla-aho was simply trying to use satire to criticise authorities for not reacting to a newspaper editorial, which suggested that killing people was a “national, and possibly downright genetic special characteristic” of the Finnish people. The court concluded that Halla-aho was seeking to indicate that immigrants can enjoy better protection from officials than the native population....

Halla-aho says he plans to appeal; the prosecution says it's considering appealing as well. This site claims to reprint an English translation of the post based on which Halla-aho was convicted; this site, which appears to be Halla-Aho's, is said to contain the Finnish original; what is said to be an interview an English translation of an interview with Halla-aho is here.

If anyone can point me to an English translation of the court's opinion, I'd be very much obliged; likewise, if any Finnish speakers can confirm the accuracy of the relevant parts of the translation, or provide their own, that would be excellent. Many thanks to Religion Clause for the pointer. No word on whether the councilman's supporters chanted "Halla-aho Akbar" in his defense.

UPDATE: Just to make it clear, I strongly oppose laws suppressing such speech, for the reasons that I've discussed often and at length in other contexts (such as my commentary on the Mohammed cartoons, and on calls for an emerging international law norm of suppressing anti-religious speech). They would surely be unconstitutional in the U.S., and I think that other democracies shouldn't enact them, either.

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Colors:

David Smallberg asks:

Every day, millions of people see six colored items in the order blue, red, yellow, blue, green, and red. What are they?

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When Should a Firm Recognize a Possible Litigation Liability?

A guest post from Professor Robert Bloomfield, Cornell management professor and director of the Financial Accounting Standards Research Initiative, posing this as a question to the Volokh Community. My thanks to Professor Bloomfield, and his post follows below (including below the fold):

As a big fan of the Volokh Conspiracy, I was very happy to see your recent posts about accounting. The posts are serendipitously timed, as this week I have been thinking of posing a question to the bloggers at VC that is relevant to my work as director of the Financial Accounting Standards Research Initiative (FASRI), an organization funded by the Financial Accounting Standards Board (the organization that sets accounting standards for the US).

The question concerns one area in which law becomes very relevant to accountants: when should firms recognize a liability due to possible litigation? Firms face a number of loss contingencies, and FAS 5 has long required firms to recognize a loss in their financial statements (and a corresponding liability) if a loss is probable and estimable, and disclose the possibility of a loss in a footnote if a loss is reasonably possible.

Recently, the FASB proposed strengthening those rules, requiring disclosure in any case when the loss will be severe, or when the loss will be resolved soon.

These requirements generated little controversy for most types of losses. For example, just about everyone agrees that if you sell an item under a warranty, it is appropriate to recognize some warranty expenses and a warranty liability. Matters get trickier, however, if the loss in question arises from litigation.

The FASB received a number of comment letters from lawyers, arguing that "loss contingencies created by litigation are unique in several respects." This comment letter from an organization called Lawyers for Civil Justice is typical (full letter at the link). In summary, Lawyers for Civil Justice argues, first, that losses due to litigation are unusually hard to predict. This strikes me as unlikely; many losses are hard to predict, and juries aren’t the only fickle parties in the world. But the letter's second argument seems more plausible: that the “adversarial nature requires that internal evaluations of the claim be kept confidential.”

There thus seems to be a real tension between good lawyering and transparent accounting. Reporting internal assessments about a judgment or settlement in financial statements may be detrimental to the firm-as-defendant. On the other hand, not providing that information to investors leaves financial reports far short of the transparency investors would like ....

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  2. Accounting Standards and Litigation Contingencies:
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Accounting Standards and Litigation Contingencies:

In a couple of earlier posts, I have discussed the intersection of law and accounting as professions, professional standards, and particularly the role of accounting background as part of legal education. Leaving aside the question of public international law, my answer to Eric's question of what should law students take is not, as Eric suggests, statistics but - accounting! My earlier posts raised a lively discussion about the importance of lawyers understanding at least the basics of financial statements, discounted cash flow analysis, and many related issues.

Professor Robert Bloomfield, professor of accounting and management at Cornell, got in touch with me at that point to raise a specific question about how financial accounting should treat litigation contingencies. Professor Bloomfield, in addition to his academic appointment, is also director of the Financial Accounting Standards Research Initiative (FASRI), an organization funded by the accounting standards board FASB. I have invited Professor Bloomfield to draft up a guest post, which I will put up separately, inviting comment on the question of when firms should recognize, for accounting purposes, a liability due to possible litigation.

I will put up Professor Bloomfield's discussion below, but I wanted to preface it here by thanking Professor Bloomfield for setting out this question and framing it in a way to invite discussion among the Volokh Conspiracy readership. I myself would like to see much more interaction and discussion, among academics as well as practitioners, among regulators and those setting regulatory and professional standards, between law and accounting. I don't pretend to be an expert - indeed, it is the fact of having learned what limited amounts I know of accounting over the years in practice, through bar courses, online courses, home study books, etc. - that makes me wish there were more attention to it at the front end in legal education. I am not opening this post up for comments, but welcome comments and responses to Professor Bloomfield's question in the following post. If we are able to get a useful discussion going, I will perhaps put up an intermittently series of accounting-law posts over the next while. But I want to warmly thank Professor Bloomfield for bringing this issue to the Volokh community.

Related Posts (on one page):

  1. When Should a Firm Recognize a Possible Litigation Liability?
  2. Accounting Standards and Litigation Contingencies:

Human Rights Watch Employee Quote of the Day--SS Jacket is "so COOL":

"That is so cool! The leather SS jacket makes my blood go cold it is so COOL!"

--Flak88 (aka Marc Garlasco, Human Rights Watch Senior Military Analyst, wehrmacht-awards.com, 2005)

H/T: NGO Monitor.

UPDATE: 88 is a well-known Neo-Nazi hate symbol, but Flak88 is the name of a German 88mm caliber Flak gun. So using the Flak88 moniker doesn't mean that Garlasco is sending out coded Nazi messags, but it's not exactly evidence of his sensitivity to the horrors of Naziism, either.


Disappointed in Obama:

My niece had her bat mitzvah Monday in New York, and it gave me a chance to catch up with various relatives. My immediate family is all conservative or libertarian, but, as one my expect from a Jewish New York-based family, many of my other relatives are very liberal.

I don't like to talk politics at bat mitzvahs, but, I think because I'm the "Washington cousin," several relatives started talking to me about it. Rather than debating, I tried to "take their temperature."

My liberal relatives still love Obama. Two I spoke to worked for Obama's campaign. They still hold out a lot of hope for Obama. But they are disappointed in him. Obviously, they are disappointed that his poll numbers are falling, and he may not be able to achieve some liberal goals they support. But they also expressed disappointment that Obama hasn't delivered the change he promised. In fact, the folks I spoke to seemed a bit bewildered that business goes an just as it did before in D.C. They would have liked Obama to insist that the budget bill he signed in March was not bloated with earmarks. They don't like how he's been making deal with all the health care special interests. And so on.

I'm disappointed in Obama, too. I expected him to be a liberal. I expected to disagree with him on most issues. But I hoped that either good government ("goo-goo") liberalism or raw political calculus (like the Republicans in 1995) would lead him to keep some of his non-ideological promises, like on earmarks, transparency, and so on. I even hoped, consistent with his promise of a net spending cut, that he'd show more fiscal responsibility than Bush did, which isn't hard to do; surely there are government programs out there that don't serve liberal ideological ends and could be cut. He lost whatever good will or benefit-of-the-doubt I was inclined to give him by neglecting, backtracking, or going back on his word on all these issues.

The Obama administration has treated Obama's promise of changing the way business is done in DC as a distraction from his legislative agenda. I suspect they'll come to regret that perspective.

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Impressions from Citizens United argument--Austin in Trouble:

Let me join the chorus of observers who came away from yesterday's Citizens United argument convinced that the Court was indeed poised to overrule Austin. I attended argument because I wanted to get a firsthand impression whether the Justices were interested in resolving the case in a way that left Austin intact. Based on the questioning and reactions yesterday from the Chief Justice and Justices Kennedy and Alito, I think it's obvious that Austin is in trouble. Chief Justice Roberts spent a considerable amount of time pinning down SG Elena Kagan and extracting concessions that she was asking the Court to reaffirm Austin based on regulatory interests different from those the Court actually relied on in that case. And Kennedy seemed to be unperturbed by Kagan's arguments about the consequences of a broad ruling in the case. I'd be interested if any of you came away with a different impression.

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Wednesday, September 9, 2009

Human Rights Watch Responds:

It's only sporting to publish the response HRW's press office has sent regarding its Nazi memorabilia obsessed military analyst, Marc Garlasco [UPDATE: I think it's also fair to point out that the response, not surprisingly from HRW, is at best disingenuous. For example, it describes Garlasco's 400+ page book on German World War II "Flak" badges as "a monograph on the history of German Air Force and Army anti-aircraft medals," leaving out the World War II part.]

Several blogs and others critical of Human Rights Watch have suggested that Marc Garlasco, Human Rights Watch's longtime senior military advisor, is a Nazi sympathizer because he collects German (as well as American) military memorabilia. This accusation is demonstrably false and fits into a campaign to deflect attention from Human Rights Watch’s rigorous and detailed reporting on violations of international human rights and humanitarian law by the Israeli government. Garlasco has co-authored several of our reports on violations of the laws of war, including in Afghanistan, Georgia, and Iraq, as well as by Israel, Hamas, and Hezbollah.

Garlasco has never held or expressed Nazi or anti-Semitic views.

Garlasco's grandfather was conscripted into the German armed forces during the Second World War, like virtually all young German men at the time, and served as a radar operator on an anti-aircraft battery. He never joined the Nazi Party, and later became a dedicated pacifist. Meanwhile, Garlasco's great-uncle was an American B-17 crewman, who survived many attacks by German anti-aircraft gunners.

Garlasco own family's experience on both sides of the Second World War has led him to collect military items related to both sides, including American 8th Air Force memorabilia and German Air Force medals and other objects (not from the Nazi Party or the SS, as falsely alleged). Many military historians, and others with an academic interest in the Second World War, including former and active-duty US service members, collect memorabilia from that era.

Garlasco is the author of a monograph on the history of German Air Force and Army anti-aircraft medals and a contributor to websites that promote serious historical research into the Second World War (and which forbid hate speech). In the foreword he writes of telling his daughters that "the war was horrible and cruel, that Germany lost and for that we should be thankful."

To imply that Garlasco's collection is evidence of Nazi sympathies is not only absurd but an attempt to deflect attention from his deeply felt efforts to uphold the laws of war and minimize civilian suffering in wartime. These falsehoods are an affront to Garlasco and thousands of other serious military historians.

And here (see below) is "serious military historian" Garlasco hanging out in his favorite "Iron Cross" sweatshirt, you know, the one that all the serious military historians wear, but that everyone thinks is a biker shirt (a screenshot from the German Combat Awards website)

After Garlasco posted this picture, the following dialogue ensued

Skip: Love the sweatshirt Mark. Not one I could wear here in germany though (well I could but it would be a lot of hassle)

Garlasco: Everyone thinks it is a biker shirt!

Skip: Yeh, were you come from but imagine walking around in Berlin with "das Eisene Kreuz" written across your cheat. Either you get beaten to pulp by a group of rampaging Turks or the police arrest you on suspicion of being a Nazi.

UPDATE: By the way, I don't suggest that Garlasco is a Nazi sympathizer--as noted in my previous post, lots of people collect Nazi stuff for innocuous reasons. [Several readers have emailed me about the significance of the Iron Cross. As weird as it is to walk around in an Iron Cross sweatshirt, without the WWII-era swastika it's not a banned Nazi symbol in Germany. Indeed it was revived, in a denazified version, as the symbol of the German armed forces in 1957. However, the West German government stopped awarding Iron Cross medals after WWII--thanks Wikipedia! The Iron Cross medal, which the shirt seems to allude to, is still widely associated with the Nazi era in Germany. I take it that "Skip" thinks that walking around in Germany with an Iron Cross shirt that says "das Eisene Kreuz" is taken as a reference to the medal, not the modern German armed forces, which would also make sense for a medal collector like Garlasco.]

But Garlasco is much more than a casual hobbyist [contrary to HRW's release, there is no indication that Garlasco is an avid collector, in general, of American and German military stuff, as opposed specifically to WWII era German military medals, on which he wrote a 430 page book, and other WWII German stuff], and I think it's a rather strange obsession for a human rights investigator who spends much of his time investigating Israel for HRW. Strange, first, because human rights activists aren't typically obsessed with collecting mementoes of Nazi war achievements. As one blogger wrote, it's like an animal rights activist avidly collecting vintage furs. There's nothing inherently wrong, by most lights, with collecting such furs, but it's not the kind of thing you'd expect an animal rights activist to find enjoyable. Not to mention that in Garlasco's case, you wind up hanging around with the type of people who casually refer to "rampaging Turks" and make not-so-oblique references to their frustration at having to obey laws banning them from wearing Nazi regalia; or, as I saw on one memorabilia forum defending Garlasco, with people who refer to Israel as the "Jew country."

And strange because one would think that HRW, under fire for years for its anti-Israel bias, would not want to hire someone with this rather strange avocation given the obvious p.r. implications--all HRW really has, after all, is its reputation. But then again, if HRW was concerned about its reputation for objectivity, it would start by not hiring pro-Palestinian activists (and no pro-Israel activists) to run and staff its Middle East division. [Put differently, I think HRW poobahs think that being hostile to Israel is an objective position, one that any reasonable person would share.] Solomania has much more.

UPDATE: Garlasco himself was apparently aware of the incongruity of his obsession. "Skip" wrote that "I remember you asking about using a psydonym [sic] before your book was published. Using your real name it really was only a matter of time before something like this happened."


Political Ideology and the Constitutionality of Campaign Finance Reform: One of the interesting aspects about the constitutional debate over campaign finance reform is that conservatives tend to think it's unconstitutional while liberals tend to think it's lawful. It's interesting to step back and ask, why is that?

  As best I can tell, constitutional theory doesn't provide an answer. Both sides seem to make their arguments using modern cases and policy arguments. Even when self-proclaimed originalist like Justice Scalia and Justice Thomas write opinions explaining votes to strike down campaign finance laws, they generally gloss over the history pretty quickly before focusing on modern court-made legal doctrine (see, e.g., here and here).

  My best guess is that the legal positions polarize as they do for two reasons. The first is that the constitutional questions are genuinely hard. The doctrine as it comes to us is unusually murky, and there are reasonable arguments on both sides. Murky precedents and good arguments on both sides tend to trigger ideological divisions: The less traditional legal arguments provide clear answers, the more judges are likely to gravitate to their political views.

  That brings me to the second point, that the politics of campaign finance are pretty polarized. For the most part, conservatives have opposed campaign finance reform on policy grounds and liberals have favored it. If you look at the vote on McCain-Feingold in the Senate, for example, 48 of the 59 "yes" votes were Democrats, with most of the 11 GOP Yes votes coming from moderates like Specter, Chafee, Collins and Snowe. In contrast, 38 of the 41 "no" votes were Republican, with the three Demoratics voting "no" being moderates like Ben Nelson.

  So for the most part, I think the votes in campaign finance cases pretty much just track the Justices' political views, without much more explanation required. An interesting exception is Justice Kennedy, who is a very strong opponent of campaign finance laws. I tend to think his opposition is not a result of his policy views or political commitments as much as a result of his consistently robust view of the First Amendment.
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Rick Hasen (Election Law Blog) on the Citizens United Corporate Free Speech Rights Case:

His live-blogging of the audio release is here, and his predictions are here:

As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not. But there was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections.

Rick is one of the top election law scholars in the country, and is generally a supporter of restrictions on corporate speech about candidates, so he isn't just hearing what he hopes to hear. Rick also reports that "Justice Sotomayor asked the questions I would have asked" -- high praise from any law professor! -- "and seems likely to be a very strong replacement for Justice Souter on campaign finance issue."

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Morocco, Algeria, Tunisia:

Who are the historical figures who are (1) best known in the Western world, and (2) did most or much of what made them famous while what is now Morocco, Algeria, or Tunisia was their home? I have one person in mind for each country, though there might of course be important rivals in each country, and for all I know there could be some who did much of their work in two or more of the countries.

Note that I ask here about people who are most well known in the Western world. I can't speak to who is most known within those countries, or in the Middle East. Also, of course many of these people are well known in the Western world despite not being widely known to have lived in those countries (or else what would be the point of the puzzle?). Rick doesn't count.

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Supreme Court to Hear Oral Argument in Alvarez v. Smith - A Key Property Rights Case:

This fall, the Supreme Court will hear oral arguments in Alvarez v. Smith, an important property rights case that I blogged about in February. For reasons, I discussed in that post, the Supreme Court must rule for the property owners in Alvarez if it is to preserve even minimal protection for the property rights of crime suspects under the Due Process Clause of the Fourteenth Amendment.

Radley Balko, a prominent writer on criminal justice issues, has an excellent column discussing the case:

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA)... The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime....

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year....

Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be.

In an opinion written by Judge Richard Posner, the Seventh Circuit struck down the Illinois law, ruling that the property owners were entitled to at least a minimal hearing before the government could take their cars and hold them for months at a time. This is the bare minimum of protection required by the Due Process Clause. As Radley explains, such asset forfeitures are an increasingly common part of the War on Drugs, and often allow authorities to hold the property of people who haven't been convicted of any crime. In this case, the six car owners in question weren't even charged with any offenses. Needless to say, most of the people victimized by such asset forfeitures tend to be poor and politically weak, and thus unlikely to have the political clout necessary to force state legislatures to reform their policies.

Unfortunately, it seems likely that the Supreme Court could reverse the Seventh Circuit and uphold the Illinois law. As a general rule, the Court usually hears cases only when there is a split between the courts of appeals (which is not true here), or when it wants to reverse the lower court decision. If the Court denies property owners even minimal protection under the Due Process Clause, it would further reinforce the second-class status of constitutional property rights in current jurisprudence, as well as impose needless hardships on numerous property owners.

However, there is a small ray of hope: This is one of the rare issues where newly confirmed Justice Sonia Sotomayor is a strong supporter of property rights. In Krimstock v. Kelly, a 2002 opinion she authored while a Second Circuit judge, Sotomayor struck down a New York City law very similar to the Illinois statute challenged in Alvarez. I discussed Krimstock in more detail in this June post, and in my Senate Judiciary Committee testimony on Sotomayor's record on property rights. Judge Posner's Seventh Circuit opinion in Alvarez actually cites Krimstock as a precedent supporting his decision. Hopefully, Justice Sotomayor will stick to her guns and provide a much-needed vote for property rights in this case.

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Audio of Campaign Finance Oral Argument Today: C-Span has posted the audio here.
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Justice Stevens Loves the NRA:

At least today he did. This morning the Court heard reargument in Citizens United v. FEC. At issue is section 203 of the McCain-Feingold campaign speech restriction law, which prohibits corporations and unions from buying TV ads (and communicating in certain other media) which mention a federal candidate during the 60 days before a general election, and the 30 days before a primary. During oral argument last spring, the government had asserted that it would be constitutionally permissible for Congress to outlaw corporate/union speech in any medium (e.g., a book) during the pre-election speech restriction period.

The Court asked for re-argument and supplement briefing on whether it should over-rule the relevant part of McConnell v. FEC (2003)(which had upheld McCain-Feingold) and Austin v. Michigan Chamber of Commerce (1990)(corporate speech can be suppressed in order to relatively amplify other voices).

Scotusblog provides a summary and analysis . As Scotusblog explains, the Court seemed unanimous that the relevant portion of McCain-Feingold was constitutionally defective, and the question was whether the Court could address the problem in a narrow way, while preserving some of the precedents in question.

The NRA brief had argued that the Court should over-rule Austin/McConnell to the extent that they ban advocacy by non-profit corporations funded by individuals, or the Court should over-rule both cases as applied to all corporations. Justice Stevens liked the NRA's first alternative. However, it appeared that five Justices wanted to go further.

The briefs are here. Among them are briefs from two other groups which made me proud to be a member: Cato Institute (focus on right of association, and anonymity); Cato supplemental brief (stare decisis principles support over-ruling Austin and part of McConnell, and returning to the 1976 Buckley precedent); ACLU Supplemental (the Court should find section 203 of McCain-Feingold facially unconstitutional; this would over-rule part of McConnell, and would not require the Court to over-rule Austin).

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VC Photo Caption Contest:
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Thomas Friedman, For One, Welcomes Our New Chinese Creditor Overlords:

Because not only does China finance our deficit, it sets an Example of Governance and Shows Our Decadent Democracy the Enlightened Autocratic Way. In Friedman's hands, China is, dare one say it, nearly a City on a Hill. This is quite an op-ed, even for Thomas Friedman and even by the historical apologetics of the New York Times:

One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages. That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century.

Friedman does not mean this merely (merely?) in the sense that there are better and worse autocrats and dictators. That point was forcefully and correctly made by Jeane Kirkpatrick back in Dictators and Double-Standards in the 1980s. No, lest anyone misunderstand him, Friedman is at pains to emphasize that he is not doing a Double-Standards Dictators, Least Worst Alternative analysis here. That would be important, as assessing tradeoffs usually is. On the contrary, he is deliberately comparing autocracy and democracy, and specifically China and the United States, and finding the latter wanting by the admirably robust standards of the former.

There is the dismaying whiff here of the 1930s and the loss of faith in those years by political elites and the chattering classes in the future of parliamentary democracy as measured against the robust and healthy decision-making processes of those, uh, non-parliamentary systems; a loss of faith in the ideal of parliamentary democracy when what, in fact, was warranted was a loss of faith in a particular cadre of corrupt and cynical political elites themselves. There is decadence here, but it is not the decadence of democracy. (Update: To be clear, before chattering classes get all chattery ... it is just a whiff, of decadence, and no, not the F-word.) The impasse of the American political class over reaching Friedman's elite-preferences on everything from health care to climate change, and his dismissal of the processes of democracy in favor of China's autocratic rule, lead him to this remarkable thought:

There is only one thing worse than one-party autocracy, and that is one-party democracy, which is what we have in America today ... Our one-party democracy is worse.

It is characteristic of Thomas Friedman's thought to move from particular issues of policy to sweeping conclusions about the Nature of Man and God and the Universe, typically based around some attractively packaged metaphor - flat earth, hot earth, etc. Rarely, however, has he been quite so clear about the directness of the connections he sees between his preferred set of substantive outcomes; his contempt for American democratic processes that have, despite all, managed to hang in there for, I don't know, a few times the length of time between the Cultural Revolution and today; and his schoolgirl crush on autocratic elites because they are able to impose from above.

Let me just say for the record that this is a monstrous column. When faced with American public defection from elite-preferred outcomes on certain policy issues that involve many difficult tradeoffs of the kind that democracies, with much jostling and argument, are supposed to work out among many different groups, Friedman extols the example of ... China's political system, because it's both enlightened and autocratic? Who among us knew?

(Update: Thanks, Instapundit, for the link; likewise Jonah Goldberg. I'm gradually cleaning up some grammar and poor wording.)

(show)

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D.C. Circuit Upholds Lobbying Disclosure Law:

Yesterday, the U.S. Court of Appeals for the D.C. Circuit rejected the National Association of Manufacturers First Amendment challenges to recent revisions to federal lobbying disclosure rules. Among other things, NAM argued the law requires greater disclosure of NAM's membership, and that this would chill its members' involvement in public policy issues. The court found such arguments unavailing, and rejected the challenge. The 48-page opinion in National Association of Manufacturers v. Taylor, by Judge Garland (joined by Judges Ginsburg and Henderson) begins:

More than fifty years ago, the Supreme Court held that the public disclosure of “who is being hired, who is putting up the money, and how much” they are spending to influence legislation is “a vital national interest.” United States v. Harriss, 347 U.S. 612, 625-26 (1954). Today, we consider a constitutional challenge to Congress’ latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

Howard Bashman rounds up news coverage of the ruling here.

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Tuesday, September 8, 2009

Roger Alford on 9th Circuit ATS Personal Jurisdiction Case:

Roger Alford has a post up at Opinio Juris commenting on the recent 9th Circuit opinion in Bauman v. Daimler-Chrysler AG. A 9th Circuit panel held last week in this case that the court did not have

personal jurisdiction over DaimlerChrysler Corporation AG because [corporation] did not have continuous and systematic contacts with the forum. The case of Bauman v. DaimlerChrysler AG arose out of the alleged kidnapping, detention and torture of Argentinian citizens in Argentina by Argentinian state security forces acting at the direction of Mercedes Benz Argentina. The plaintiffs sued the parent company, DaimlerChrysler AG, and the Ninth Circuit concluded that it lacked personal jurisdiction.

As Roger explains, given the facts, this conclusion is not at all surprising. More surprising, as he goes on to explain, is Judge Stephen Reinhardt's dissent, in which he argues that

promoting international human rights was a state interest that should factor into a finding of personal jurisdiction. Reinhardt first concluded that DaimlerChrysler AG had minimum contacts in the forum through its American subsidiary. He then examined whether it was reasonable to assert jurisdiction based on seven factors, including “the state’s interest in adjudicating the suit.”

This looks very much, Roger adds, like a forum non conveniens argument "dressed up as an assertion of personal jurisdiction." Indeed. However, a reason I was interested in reading this opinion is that much of my attention in Alien Tort Statute jurisdiction issues runs to subject matter jurisdiction and to whether the plaintiffs arguments make out bona fide Sosa violations of the law of nations, and whether the jurisidictional subject matter is met if the claimed violator is a corporation. I thus found it interesting to see a discussion of what kinds of contacts are required to reach personal jurisdiction, and then what the standard of reasonableness for the assertion of personal jurisdiction.

Update: Here's a short, interesting piece by Josh Goodman in the Harvard International Law Journal Online, proposing a way to resolve issues of aiding and abetting liability under the ATS, reaching to administrative law models. I have only read it quickly, and haven't formulated a firm view, but if you follow ATS issues, I'd say it's worth reading.

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It's Rare For Me to Agree with legal analysis in a New York Times editorial, but this editorial on the Lori Drew prosecution presents one of those rare cases. (Hat tip: Scott Greenfield)
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NSA Intercepts Used To Obtain Conviction for Terrorist Plot to Blow Up Transatlantic Flights: Here is a story about national security surveillance that probably won't get the attention it deserves:
  The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain’s Channel 4.
  The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.
  That trial resulted in the men being convicted of conspiracy to commit murder; but a jury was not convinced that they had planned to use soft drink bottles filled with liquid explosives to blow up seven trans-Atlantic planes — the charge for which they were convicted this week in a second trial.
  According to Channel 4, the NSA had previously shown the e-mails to their British counterparts, but refused to let prosecutors use the evidence in the first trial, because the agency didn’t want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was Al Qaeda’s director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.
  The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA’s change of mind occurred after Rauf, a Briton born of Pakistani parents, was said to be killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.
Fascinating. The BBC has the text of the intercepts here.
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"It's a Geek's World," Reports

TaxProf in quoting Undergraduate Degree Ranking by Starting Salary (plus median mid-career salaries). Yes, it is.

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The Best E-Mail I Have Ever Received: Received recently from a former student of mine, with identifying information deleted:
Professor Kerr,

I don't know if you remember me, but my name is []. I am a member of the Class of [] and was a student in your Criminal Procedure and Computer Crime classes.

I write this simply to say "Thank You." Your passion for the subjects you teach definitely came through, and it helped instill in me the desire to work in the field of criminal law. I recently received an opportunity to work as an ADA at the [] District Attorney's Office. After attempting a variety of other professions, it feels great to know that I finally found something I am truly passionate about, and I'm not sure that would have been possible without enjoying the subjects you taught. So while the generalization is that professors are unappreciated, please know there is at least one student who is grateful for your work.

All the best,
[Former Student]
For a professor, it just doesn't get any better than that.
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Potential Pitfalls of Political Alliances:

My recent exchange with Mark Kleiman over the issue of "fellow-traveling" with "wingnuts" raises the more general question of the dangers of political alliances. As I argued in my last post, it is sometimes necessary to make political alliances with people who we think hold flawed views or even "insane" ones (to use Kleiman's terminology). Such coalitions are a necessity for almost any political faction, but particularly a relatively small one such as libertarians. At the same time, coalition politics creates the danger that we will ignore or even try to justify the shortcomings of our political allies of convenience. The danger is real. But it doesn't justify abjuring all political alliances with people we strongly disagree with. Rather, the right approach is to recognize the problem and try to guard against it.

For example, I think that the current political situation justifies an alliance between libertarians and conservatives, who share a common interest in opposing the vast expansion of government advocated by the liberal Democratic administration and Congress. It's certainly possible that this view might lead me to ignore the shortcomings of conservatives. However, I have tried hard to keep that from happening. For example, I have not hesitated to criticize conservative icons such as Robert Bork and William F. Buckley. During the 2008 election campaign, I criticized Sarah Palin for her ignorance of important policy issues, even though I thought that the Republican ticket was the lesser of the two evils on offer last November. And I have a long record of criticizing the Bush Administration's massive expansion of government spending and regulation (e.g. - here and here). At one point, my sympathy with some of Palin's views on other issues may have led me to unjustifiably minimize her possible endorsement of creationism; however, I eventually noticed the mistake and corrected it. I suppose it's possible that I would have criticized various conservatives even more were I not in favor of a political alliance with them. But it's hard to argue that I have simply chosen to ignore their flaws from a libertarian point of view.

In sum, political alliances with people who hold what we see as flawed views are perfectly defensible so long as we don't blind ourselves to our allies' shortcomings. At the same time, it's important to make two distinctions. First, it's worth differentiating serious thinkers like Bork from far more dubious pundits such as Rush Limbaugh or Ann Coulter. Association with the former is more defensible than with the latter. It would, of course, also be wrong to suggest that one must forego all cooperation with a political movement merely because it includes some extreme or ridiculous elements, since virtually any large political faction does so.

Second, there is a difference between active cooperation with a group and merely expressing views on a particular issue similar to theirs. In my post on "czars" that kicked off this discussion, I did not actually cooperate with Glenn Beck or other dubious right-wing pundits in any way. I merely expressed opposition to the czar system, an institution that they also oppose. I don't see why I should change my stance merely because people with ridiculous views on other, unrelated issues have the same position. If I instead supported the czar system, one could probably find equally ridiculous commentators who also hold that view. More generally, as Eugene Volokh explained in his post on the "reverse Mussolini fallacy," it is a mistake to reject a position merely because some of the people who endorse it are foolish or even evil.

Even active cooperation with the likes of Beck might be justified if a great enough good can be achieved through it. But we have to be careful that the good achieved really is great enough to justify the risks. I don't think you have to have meet anywhere near as high a standard if all you're doing is expressing a view that Beck also happens to hold, or cooperating with serious thinkers from a political orientation that also includes some crazies.

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Cass Sunstein and the Second Amendment:

Second Amendment Minimalism: Heller as Griswold appeared in a symposium issue of the Havard Law Review last fall. Sunstein examines the parallels between Heller and Griswold: "In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier...No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments."

Sunstein also notes an important distinction between Griswold and Heller:

There is an important historical difference to be pondered as well. Heller is the product of a mature current of constitutional thought, spurred by private groups but also by committed academics, that had clearly become prominent in nationwide politics and culture and that, by 2008, had established itself as thoroughly mainstream. In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation's cultural viewscreen. In this sense, Heller has far more in common with Brown v. Board of Education than with Griswold—in the particular sense that Brown, like Heller, was the culmination of a long process of advocacy, in a self-conscious effort to entrench a certain understanding of the Constitution in the interest of social reform. In short, Heller and Griswold have distinctive sociologies. While the two are both responsive to public convictions, the cultural backdrop for the two decisions was radically different.
As a description of judicial behavior, I think Sunstein's article is accurate. He would prefer that the Second Amendment be interpreted to uphold gun laws which I might consider to be infringements. However, Sunstein makes it clear that he considers Heller rightly decided; he is no originalist, but instead believes that the Court owed some deference to the moral commitments of tens of millions of Americans. Thus, Sunstein qualifies as among the most "pro-Second Amendment" of Obama administration nominees.

This is, admittedly, a very small group. Other than Interior Secretary Ken Salazar and Transportation Secretary Ray LaHood, I cannot think of any Obama nominee with a record of doing anything to support an individual Second Amendment right that includes the right to own a handgun.

I echo Ilya's point (see the chained post) that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy.

Update: A commenter has posted a video of a Sunstein lecture at U. Chicago in 2007 which presents a much more hostile attitude towards the individual right than is expressed in the Harvard article.

Still more: The American Spectator quotes an unnamed White House source:
"The goal from this White House is to have as much nonspecific language passed by Congress in policy areas like health care and the environment and then use Sunstein's office to put in place the regulatory language called for by Congress that gets us to where we want to be. It may very well be the most important job in this administration, given the lack of success we may have on Capitol Hill."

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Northwestern U.L.Sch. 2009 Firearms Law & The Second Amendment Symposium:

To be held this Saturday, 9 a.m. to 3 p.m. Cosponsored by the Northwestern University Law School chapter of the Federalist Society and the NRA Foundation.

Panel 1 is 9-10:30, on "Second Amendment Law and the Practicioner." Speakers are Christopher Conte, Richard Gardiner, Ken Hanson, and Willam Howard.

Panel 2 is 10:45-12:15, "The Second Amendment and Constitutional Interpretation." Speakers are Nelson Lund, Allen Rostron, and me. I will be speaking about the Second Amendment in the Living Constitution.

The final panel is "The Scope of the Second Amendment," with Nicholas Johnson, Michael O'Shea, and Clayton Cramer, 1:30-3.

Some recent interesting scholarship by the panelists includes:

Rostron: Incrementalism, Comprehensive Rationality, and the Future of Gun Control, Maryland Law Review, Vol. 67, No. 3, 2008--an explanation of how federal gun laws have been created incrementally, with the resulting product not being particularly coherent or rational. Cease Fire: A 'Win-Win' Strategy on Gun Policy for the Obama Administration, Harvard Law & Policy Review, Vol. 3, No. 2, 2009. Obama should say that he will support new legislation which advances gun control AND gun rights. Roston provides a menu of gun control choices which he argues will have little if any effect on law-abiding gun owners, plus a list of gun rights proposals which have been offered in Congress recently. A bill which contains items from both Column A and Column B would best reflect American public attitudes, he argues.

O'Shea: The Right to Defensive Arms After District of Columbia v. Heller, 111 West Virginia Law Review 349 (2009). Outstanding explanation of the civic vs. personal firearms right strands in Miller and Heller, and the implications of Heller's decision to give priority to personal use.

Lund: Heller and Nonlethal Weapons, Hastings Law Journal, Forthcoming. Heller's "common use" test for permitted arms could allow a government to stifle innovative firearms. (The O'Shea article also addresses this issue.) The Court should abandon the "common use" dicta, and instead apply the principle of Kyllo v. United States that the Constitution keeps up with technological development. This is particularly important in light of new non-lethal defensive arms which may become available.

Cramer: Gun Control: Political Fears Trump Crime Control, Maine Law Review, 61:1[2009] 57-81. Great Britain's Firearms Act of 1920 was mainly enacted in response to fears of political unrest, involving suffragettes, trade unionists, Irish, and (especially post-WWI) Commununists and the lower classes in general.

Johnson: Imagining Gun Control in America: Understanding the Remainder Problem, Wake Forest Law Review, Vol. 43, 2008. Even without the impediment of Heller, many supply-side gun controls could be nearly impossible to implement effectively. Proposals regarding registration, special restrictions on gun shows, gun rationing (e.g., "one gun a month"), ballistic fingerprinting, and smart guns are examined in light of the remainder problem.

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Homemade Bacon:

Sounds delicious. No smoking — and no added water, a deletion that the author (my friend Kristina Johnson, who is a former chef) reports is quite valuable — but garlic, pepper, cumin, thyme, juniper, anise, and bay leaves, plus the usual salt, sugar, and of course Homer Simpson's and Pliny the Elder's favorite meat. It's the sort of thing I would have gladly tried before the arrival of my energetic sons caused me to put most of my cooking interests on the back burner. Yum.

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Now There's a Law That's Sure To Reduce Ethnic and Religious Tensions:

BBC reports:An Arab organisation [the Arab European League] is to be put on trial in the Netherlands over its publication of a cartoon deemed offensive to Jews, prosecutors say....

Dutch prosecutors said the AEL cartoon was "discriminatory" and "offensive to Jews as a group ... because it offends Jews on the basis of their race and/or religion".

The cartoon shows two men standing near a pile of bones at "Auswitch" (sic). One says "I don't think they're Jews".

The other replies: "We have to get to the six million somehow."

A spokeswoman for the prosecuting authority said the group could be fined up to 4,700 euros (£4,100), though in theory a prison sentence was also possible....

Naturally, the AEL is complaining about how this is supposedly inconsistent with the Dutch prosecutors' decision not to prosecute Geert Wilders for making the movie Fitna, which initially included the Mohammed cartoons. And the complaint seems plausible: Though one could distinguish Holocaust denial cartoons from the Mohammed cartoons on the theory that the former convey false historical statements of fact and the latter convey moral judgments or evaluative opinions, that doesn't seem to be a distinction that the quoted law draws, or that most general "hate speech" laws draw.

But beyond this, even if subtle distinctions can be drawn, at least a nation like the U.S. can respond to those who demand censorship of the Mohammed cartoons with a simple principle: We protect religiously and racially offensive ideas and images because that's what our constitutional law demands, and Jews, Christians, and Muslims all have to deal with that. But once one starts to draw subtle distinctions about which racially and religiously offensive ideas and images are sufficiently "hate speech" or sufficiently "offensive to ... a group" and "discriminatory," one sows more racial and religious discord than one avoids: Groups either fall into censorship envy, or resent the legal system and other groups more for the freedom that those others are seen as possessing.

It seems to me quite clear that many ideas can be quite harmful. That includes many racially or religiously bigoted ideas, but also advocacy of Communist revolution, most other advocacy of violence, historical conspiracy theories, and a wide range of other ideas. The particular harm caused by each such statement can be hard to identify. But much harmful behavior, such as the 9/11 attacks, race riots, and many other crimes would not have taken place without speech that made such behavior seem permissible and even laudable to the criminals. Some crimes, such as crimes of rage or sexual jealousy or greed might happen largely independently of ideological advocacy, and likely happened even before language evolved; but ideological crimes have ideological advocacy as an important cause.

I support protection for such ideas, though, because it seems to me that trying to suppress them through the force of law on balance tends to be more harmful than helpful. That's partly because the government is likely to abuse such suppressive powers, by suppressing the valuable speech as well as the harmful. But beyond that, attempts at such suppression -- which will rarely be particularly effective in any event, especially given modern technology -- are likely to arouse many of the same hostilities that the suppression is aimed at abating. This sort of prosecution strikes me as an excellent example of that phenomenon.

Thanks to First Amendment Law Prof Blog for the pointer.

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Mark A.R. Kleiman on Czars and "Fellow-Travelling" with "Wingnuts":

Mark A.R. Kleiman responds to my most recent post on "czars" with a substantive point, and with claims that I am somehow "fellow-travelling" with ridiculous "wingnuts." The substantive point is that "Somin’s claim that assigning White House staffers such cross-cutting authority risks giving inappropriate people great power by 'circumventing the normal appointment and confirmation process' doesn’t really pass the giggle test. The White House Chief of Staff isn’t a Senate-confirmed position, and wields far more power than any nominal 'czar.' Van Jones’s 'czardom' consisted of a brief from the President to cajole other executive branch officials about “green jobs.”

I think that this greatly understates the power of the various czars. Their authority includes power over the massive auto industry bailout (the "car czar"), the War on Drugs (the "drug czar"), and a czar who oversees the war in Afghanistan and Pakistan, among others. It's true that Van Jones' position was relatively minor. But the czars as a group have authority over many important issues. As for the White House Chief of Staff, I think there is less need for Senate confirmation of an official whose main job is, after all, to oversee the president's own staff. He has very little independent authority over policy. However, in an administration where the chief of staff's position does extend to policy in a more significant way, it is indeed possible that the chief of staff selection should be subject to greater scrutiny than it currently gets. Whether or not that is so, I think my original point stands. The czar system does circumvent the regular appointment and confirmation process [update: with a few exceptions, including the drug czar], and that fact does pose dangers.

Kleiman's second claim is that I (and perhaps other VC bloggers), have been dangerously associating ourselves with "wingnuts":

The comments to Somin’s post reflect the danger that sane people run when they think that they can safely fellow- travel with insane people. The objectively insane belief that Barack Obama is a Marxist is offered in (apparently) perfect seriousness. Jones’s (former) self-identification as a “communist” made him too hot to handle politically. But Glenn Beck’s next target is Cass Sunstein, with his views on animal rights and the Second Amendment as the pretext. Having tasted blood, the wolfpack is coming back for more. Sunstein, as a commenter points out, has been a guest poster on the Volokh Conspiracy. But that won’t protect him from the full Jones/Sotomayor treatment, though his white skin might. From a libertarian perspective, Sunstein is a far more attractive choice for OIRA than anyone likely to replace him. But will the Volokh Conspirators rise to defend their former colleague when their current allies turn on him?

That famous poem by Pastor Niemoller on the risk of not speaking out starts “First they came for the Communists.” Any serious libertarian or conservative who tries to use the Beck/O’Reilly/Limbaugh/Palin faction rather than denouncing it is playing with fire. Lie down with dogs, get up with fleas.

To the extent that Kleiman's accusation is based on silly things that some people said in comments to our posts, I think it hardly needs to be said that I don't endorse, agree with, or "fellow-travel" with everything said by commenters. After all, there are many comments to my posts that attack me or my views in all sorts of ways. If I deleted all comments I disagreed with, there wouldn't be many comments left, and the whole point of having comments would be undermined. I have previously written that Obama is not a socialist. The fact that some commenter to one of my posts says otherwise does not mean that I have changed my mind or endorse the sentiment in any way.

Kleiman is also wrong to suggest that we haven't defended Cass Sunstein's nomination to head OIRA. Indeed, my co-bloggers have written an entire series of posts defending Sunstein's nomination. I myself agree that Sunstein is well-qualified for the job and is better from a libertarian perspective than most others whom the administration could have appointed.

Finally, Kleiman implies that it is wrong for us to ever ally on any issue with various conservatives who hold ridiculous views on other matters. In my judgment, the issue is more complicated than that. If Kleiman's overwrought analogy between these conservatives and the Nazis referenced by Niemoller was accurate, it would indeed be dangerous and wrong to ally with them on anything. But I think it's pretty obvious that Limbaugh and Glenn Beck, despite their excesses, are a far cry from Hitler and Goebbels. Opposing Sunstein's nomination - even for silly reasons - is not the same thing as wanting to send people to concentration camps. As co-blogger Jonathan Adler points out, various left-wing groups have also attacked Sunstein's nomination, often for reasons that aren't much better than Beck's. Does that mean that "serious" liberals must forego all cooperation with these groups?

Beck, Limbaugh, and some other conservative talk show hosts and pundits do indeed say ridiculous things, and I have sometimes denounced such people (and would do so more often, if I paid more attention to them). Whether political cooperation with these individuals is warranted will vary from case to case. You don't have to agree with all of a political ally's views, or even, to use Kleiman's terms, think that they are all "sane." Sometimes, association with "insane" allies is self-defeating because it tends to discredit the cause in the eyes of the public or because it indirectly serves to promote their more dangerous ideas. Other times, the insane have enough clout that an important battle can't be won without them. Consider, for instance, the Anglo-American alliance with Stalin during World War II. Only rarely will the circumstances justify allying with an evil as great as Stalin's. However, it takes a much less dire situation (like, say, a massive expansion of government) to justify some libertarian political cooperation with Glenn Beck or Rush Limbaugh - who are not exactly in Stalin's league as evildoers go.

UPDATE: I have edited this post to make a few grammatical and stylistic corrections.

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Is Human Rights Watch's Marc Garlasco A Nazi-Obsessed Collector?

Well, yes. But if you're going to hire pro-Palestinian activists to run your Middle East division, why not throw in an avid collector of Nazi memorabilia (he even wrote a book, see below) to be your military investigator for good measure?

Snark aside, I understand there are people who collect Nazi memorabilia for innocuous reasons, and in Garalasco's case, his grandfather served seven years in the Nazi military. Perhaps there's not much more to it than that. But it's still, to say the least, a rather odd hobby for someone hired to be a human rights organization's point man on Israel issues.

Meanwhile NGO Monitor has released a devastating, detailed, and well-documented report analysis of HRW's Israel reporting.


Monday, September 7, 2009

AEI Conference on ESA Reform:

Next Tuesday, September 15, I am directing a conference at the American Enterprise Institute, "Rebuilding the Ark: New Perspectives on Endangered Species Act Reform." A full description, draft agenda, and registration information are here.


Why Is the Court Reconsidering Austin?

On Wednesday, the Supreme Court will hear reargument in Citizens United v. FEC and hear argument on whether the Court should overturn its decision in Austin v. Michigan Chamber of Commerce (1990) and portions of McConnell v. F.E.C. (2003) upholding government limits on corporate funding of express advocacy in campaigns. SCOTUSBlog previews the case here.

There has been a fair bit of speculation about why the Court sought reargument, and specifically why it asked for briefing on Austin. Many have pointed to an exchange during the oral argument during which the federal government's attorney argued that the government could constitutionally prohibit a corporation (or union) from paying for the publication of a book urging the election or defeat of a candidate for office. Insofar as this represents the logical extension of Austin, perhaps this prompted some of the justices to want another look at Austin.

NYU's Richard Pildes suggests the seeds were planted earlier, perhaps during McConnell, in which the federal government relied very heavily on Austin in defending the McCain-Feingold campaign finance law. As he posted to the Election-Law listserv last week:

In the 4-hour argument in the McConnell case, involving the constitutionality of BCRA, the United States invoked Austin repeatedly as the answer to every constitutional question the Court had about the new limits on corporate/union electioneering. That approach culminated, toward the end of the argument, in the following exchange. At this time, Supreme Court transcripts did not identify Justices by name, but I believe that Justice Scalia is asking the question here; Mr. Clement is Paul Clement, the Principal Deputy Solicitor General at the time who is defending BCRA on behalf of the United States:
QUESTION: You really like Austin, don't you?

MR. CLEMENT: I love Austin. It's binding precedent. I don't, I mean, as much as the plaintiffs don't seem to like the case, I don't really hear them asking this Court to overrule it.

To get a sense of what led up to this culminating moment, I will include a few other brief excerpts that show the extent to which the United States invoked Austin in response to many of the Court's questions about regulation of corporate electioneering. For example, here is an exchange on the government's justification for the statute's different treatment of media corporations from other corporations:
MR. CLEMENT: I don't know about that. What I do know is that media corporations are exempted for the same reason they've always been exempted from the law, which is that they do pose a different situation, a difference of kind. And this Court -

QUESTION: And why is that? Why is that? I don't understand that.

MR. CLEMENT: I mean, I think the traditional role of media companies has been quite different than the traditional role of other companies.

QUESTION: What case do you have that we can distinguish speech based on the identity of the speaker? Outside of this area?

MR. CLEMENT: Well, I don't know. I've been focused on this area for the last couple of weeks, Justice Kennedy, and the case that comes to mind is Austin, where the Michigan statute before this Court -

Here is another answer to the Court:
MR. CLEMENT: . . . many of the arguments that are being raised in opposition to this statute are the arguments of the dissenters in Austin, not the arguments of the majority opinion in Austin. And I think that's an important point.
Similarly, here is the answer to questions concerning how to justify the distinction, which some Justices challenged as "artificial," being election and issue ads:
MR. CLEMENT: Justice Scalia, I don't think it's artificial distinction. In any event, it's not a distinction I'm drawing. It's a distinction that this Court drew in Austin when it distinguished the situation it had before it in Belotti, where it said that a corporation facing an absolute ban, not a separate segregated fund requirement but an absolute ban in participating in a referendum, this Court held that unconstitutional. In Austin, this Court said that limits on express advocacy in the context of a candidate campaign triggered different interests, and in that context, Congress has a legitimate ability to deal with the corrosive and distorting effects of aggregate corporate wealth and the problems with diverting shareholder and member money to political causes with which they disagree.
[Reprinted with permission.]

Prof. Pildes suggests that the content can help provide some additional perspective on the Court's decision to reconsider Austin.

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Happy 18th Anniversary to Beloved Wife Jean-Marie:

Ken's Beloved Wife Jean-Marie, Guatemala Early 1980sJM, Guatemala early 1980s.JM hanging out in a bar in Nebaj, Guatemala, early 80s.

I do realize that I am officially hijacking not just the thread, but the whole blog, but my beloved wife Jean-Marie is in Guatemala today, on our 18th wedding anniversary. So I thought I would post a couple of pictures of her from her days in Guatemala in the late 70s and 80s, a journalist and war photographer in the Central American wars. Heck, it's a slow-posting Labor Day. Anyway, I miss her and happy anniversary from far away. (I'm sufficiently embarrassed by this PDA, though, that I'm not opening comments.)


When I See This in the Comment Thread ....

From someone named "Cheap Jordan Shoes":

This is a great piece. Very thought provoking. I like the sort of ending that leaves it opn to personal input. Makes it work for just about everyone I think. Nicely done! I’ll subscribe.

Then I think of this XKCD comic. Suspicion (hotlink).

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al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?: The Ninth Circuit handed down a fascinating and important case on preventive detention on Friday, and one that I suspect added a new case to the Supreme Court's docket next year: al-Kidd v. Ashcroft. The basic holding of the opinion is that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it. The majority opinion was written by Judge Milan Smith and joined by Judge Thompson; Judge Bea wrote a partial concurrence and partial dissent.

  There's a lot of coverage of the case in newspapers and around the web, but nothing that really delves into the legal questions. That's understandable, as the opinions in the case fill about 100 pages. But in this post, I wanted to delve into the legal questions and see if the court's opinion holds up to scrutiny.

  My basic take is that parts of the opinion are persuasive and parts are pretty unpersuasive. First, the rejection of absolute immunity seems right. Second, the Fourth Amendment holding seems possible but rather unlikely, and in general misses the key legal question raised by the case. Third, I think the qualified immunity analysis is clearly incorrect.

  Fortunately, this case is perfect for Supreme Court review: If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

A. The Facts

 Al-Kidd is a U.S. citizen who converted to Islam and had suspicious contacts with a suspected terrorist Sami Omar Al-Hussayen, who had recently been arrested and charged with fraud. Soon after al-Hussayen was charged, officials learned that Al-Kidd was planning to leave the United States to travel Saudi Arabia. Al-Kidd said he was going to Saudi Arabia to study Islam; U.S. officials feared he was trying to leave the U.S. to escape U.S. authorities.

  DOJ officials obtained a "material witness" warrant under 18 U.S.C. § 3144 ordering that al-Kidd be detained as a possible witness in the criminal case against Al-Hussayen. Section 3144 states:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
  al-Kidd was held for about two weeks, and he claimed that he was treated very badly; he was released only when he surrendered his passport and agreed to certain conditions of release. He had to comply with those conditions of release for 15 months, and during that time he lost his job and couldn't maintain steady employment. Notably, al-Kidd was never actually called to testify at al-Hussayen's trial.

B. The Lawsuit

  al-Kidd then brought this civil suit alleging that his detention violated his Fourth Amendment rights and the material witness statute, and that his treatment during the detention violated his Fifth Amendment and Eighth Amendment rights. Importantly, the part of the suit that is on appeal is only the part that is against then-Attorney General John Ashcroft in his personal capacity. al-Kidd sued Ashcroft in his personal capacity on the theory that Ashcroft had created and authorized a program of misusing the material witness statute. Pursuant to Ashcroft's program, al-Kidd argued, DOJ had obtained a material witness warrant and detained him not because he was actually a material witness, but because they wanted to preventively detain and investigate him as a potential terrorist. Al-Kidd argued that this misuse of the material witness statute violated the statute and the Fourth Amendment.

  The Ninth Circuit in al-Kidd had to consider three questions: 1) Is an Attorney General immune from such a lawsuit? 2) If the Attorney General is not immune from suit, do the alleged facts (assuming they are true) sufficiently plead a violation of the Fourth, Fifth, and/or Eighth Amendment or Section 3144 by Ashcroft? 3) If so, was the illegality of the detention and treatment "clearly established" at the time it occurred so that there is no qualified immunity?

C. The Ninth Circuit's Decision

  Issue One: Judge Smith first ruled that Ashcroft was not entitled to absolute immunity, but rather was entitled only to qualified immunity. Smith reasoned that prosecutors get absolute immunity for prosecutorial acts but not investigative acts: Because Ashcroft's alleged acts were investigative, he was only entitled to qualified immunity. Smith noted that the act of getting a material witness warrant is ordinarily considered a prosecutorial function that triggers absolute immunity, but he reasoned that it's a different case if the allegation is that the prosecutor was using the warrant authority as a ruse to investigate.

  The Court thus holds: "when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity." The court adds that the plaintiff in such a case needs to state facts allowing the court to reach a conclusion that this intent was reasonably likely; a mere allegation of intent, without support, won't do.

  Issue Two: The next question is whether Ashcroft had violated al-Kidd's rights. This really breaks down into three discrete questions: whether Ashcroft violated al-Kidd's Fourth Amendment rights by the detention; whether Ashcroft violated Al-Kidd's statutory rights under the material witness statute; and whether Ashcroft violated al-Kidd's Fifth and Eighth Amendment rights through the conditions of confinement.

  (a) Fourth Amendment. Did Ashcroft violate al-Kidd's Fourth Amendment rights? Yes, the court concludes. The Ninth Circuit holds that if the feds are arresting someone to detain them for investigative purposes, they need the same probable cause traditionally required to arrest someone and charge them with a crime: They need probable cause to believe that a crime was committed and that the person arrested committed it. They can detain someone under a material witness warrant if they really plan to use the person as a material witness, but if the purpose of the detention was merely investigatory, they can't do that.

  In response to Judge Bea's argument that this focus on subjective intent runs contrary to Fourth Amendment law — specifically, that you can't look at the subjective intent of the detention to determine if it violates the Fourth Amendment — Judge Smith reads the checkpoint/special needs cases such as Indianapolis v. Edmond as allowing an inquiry into programmatic purpose. Because the programmatic purpose of the preventive detention regime is presumed to be investigatory — specifically, to investigate that person for a criminal act --- that purpose governs and the government can only detain the person with probable cause that they actually committed an offense.

  The Court expresses its holding on this point as follows:
probable cause— including individualized suspicion of criminal wrongdoing— is required [by the Fourth Amendment] when 18 U.S.C. § 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. . . . All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.
  (b) Violation of 18 U.S.C. § 3144. al-Kidd next argued that the warrant that was signed by the judge to detain him did not comply with the material witness statute, and that Ashcroft was responsible for the violation: Ashcroft had played a role in establishing the use of material witness warrants to preventively detain terrorist suspects, and the creation of that program led to the use of the statute that violated al-Kidd's statutory rights. The Ninth Circuit agrees, at least at the Rule 12 dismissal stage, although it notes that there may be a different result at summary judgment depending on Ashcroft's role in using the material witness warrant to preventively detain suspects.

  (c) Fifth Amendment and Eighth Amendment. The court holds that al-Kidd's allegations that Ashcroft was responsible for his treatment during his detention cannot go forward, as "al-Kidd has not alleged adequate facts to render plausible Ashcroft’s personal involvement in setting the harsh conditions of his confinement, and has therefore failed to state a claim for which relief can be granted."

  Issue Three: The third and final issue was whether the violation of al-Kidd's Fourth Amendment rights was clearly established in 2003, when the detention occurred. This is required because Ashcroft is protected by the doctrine of qualified immunity: He is only personally liable for the alleged Fourth Amendment violation if a reasonable person in his situation would have known that the detention violated the Fourth Amendment. This inquiry generally requires a study of caselaw at the time of the time of the detention, to see if it was clear at the time that the detention was unconstitutional.

  The court acknowledges straightforwardly that there was no case law on this specific issue at the time: "In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution." However, the Court rules that the violation was clearly established because there were clear enough signs in 2003 that such detention should be deemed unconstitutional.

  Judge Smith lists five sources of law that he says collectively "clearly established" that al-Kidd's Fourth Amendment rights were violated at the time of his detention.
1) Dicta in some cases already on the books at that time saying that the statute should be limited to real witnesses, and not used as a pretext;
2)The traditional definition of probable cause in the context of criminal arrests;
3) The Supreme Court's automobile checkpoint cases, which indicated that "investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause";
4) The general "history and purposes of the Fourth Amendment," namely, limiting arbitrary government power and seizures based on less than probable cause; and finally,
5) Dicta in a footnote in one district court opinion decided before March 2003 saying "categorically" that use of the material witness statute for investigatory purposes was "illegitimate."
  Putting these five sources together, the Court concludes that "al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. "

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Sunday, September 6, 2009

Swine Flu Outbreak at Washington State University

I imagine pretty much every university has been developing a plan for addressing a massive flu outbreak. My law school, Washington College of Law, has been extremely diligent, setting up web systems for holding classes using remote cams and distance learning, for example. It has offered free regular flu vaccinations to students and staff, and has installed hand sanitizers everywhere. Still, especially before Labor Day flu preparations of any kind seem a little remote and hypothetical to those of us who aren't health care providers ... then I saw this article, about a massive outbreak involving several thousand students, at a campus in Washington state.

Washington state's Whitman County, where the school is located said that tests at a state laboratory late last week "confirmed that the influenza outbreak at Washington State University (WSU)... is indeed caused by the novel 2009 H1N1 Influenza A."

The west-coast school last week instituted a blog to help provide information to students about the sudden and dramatic spread of the A(H1N1) virus on campus just days into the new school term.

"We estimate that we have been in contact with about 2,000 students with influenza-like illness in the first 10 days of our fall semester," the latest online posting said.

"At this time of year, we would typically only see a handful of patients with influenza-like illness. Health care providers in the local community have also seen WSU students with influenza-like illness, but we have no way of knowing how many.

"We also have no way of estimating how many students are self-caring at home without contacting us," school officials said.

Okay, this has all just hit me at a whole new level of reality check. I'm going to make sure my webcam is working. Between my school, with a vast number of students and faculty from all over the world constantly traveling during the semester, my wife's school, and my daughter's school, plus my own travel ... I am at the intersection of way too many disease vectors.

Update: Sorry - I wasn't clear - I'm not especially worried about getting sick. It's rather things like sizable numbers of students getting sick, classes canceled for days and weeks at a time, big mess, like what's going on at WSU. Not plague and death, but big disruption to students in the semester, when it is not a great time to have things like classes postponed and all, makeups that postpone exams and grades. The economic situation is bad enough not to compound it with any extra badness.

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A Czar Bites the Dust:

The Obama Administration has appointed more czars than Romanov dynasty ever had. Now, however, one of those czars has been forced to resign. "Green jobs" czar Van Jones has resigned as a result of the controversy that arose after the discovery that he signed a 9/11 "Truther" petition back in 2004. Jones' dubious excuse that he had not read the petition carefully before signing and that it didn't reflect his real views failed to mollify the critics, especially given other inflammatory statements he has made.

Jones' ridiculous beliefs probably aren't typical of those of the administration's many other czars. However, the fact that a person like him could be appointed to an important czar position does highlight one of the weaknesses of the czar system: by circumventing the normal appointment and confirmation process, it makes it more likely that a poorly qualified person or one with ridiculous policy views will be put in charge of important issues. Unfortunately, not all such dubious czars can be as easily exposed as Jones was. And that is just one of several flaws of the czar system.

As I noted in previous posts, Obama is not the first president to use "czars." Several Republican presidents also employed them. However, that does not justify the present administration's massive expansion of this dubious practice. We can only hope that the Jones incident will convince the president to cut back on it.

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A Poetic Dissent:

A commenter to my Sunday Song Lyric post below linked to this gem of a dissenting opinion.

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The G-20 Meetings of September 4-5, 2009, Summarized:

And with appropriately idiosyncratic commentary from me. This goes on for quite a while, so I'm going to hide it, trusting to Your Dopamine Pathways that you will not be able to resist Seeking it. There is a discussion at the end about transnational regulatory governance networks and what they mean for these meetings as exercises in a straitened form of global governance - which I suggest, not. And bonus discussion of Banking Institutions that are Too Big To Fail because they Operate Galaxy-Wide, and whether transnational regulators are a precursor to the United Federation of Planets and, finally, the terrible, terrible idea, perhaps the worst bit of social utopianism in the Star Trek universe (besides the ostensible un-necessity of money that Co-Blogger Ilya has already discussed and discounted), Memory Alpha ....

(show)

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Sunday Song Lyric: Mission of Burma is back. The early 80s, Boston-based post-punk band has put out a few albums of late, and they played at Case Western last night. (Of course I was out of town and missed it.) I haven't heard much of their new stuff, but their 1981 album (EP actually), Signals, Calls and Marches has a permanent place in my collection.

If there's a Mission of Burma song people know, it's "That's When I Reach for My Revolver" (though many are probably only familiar with the sanitized-for-MTV Moby version, "That's When I Realize It's Over.") It was the lead track on the original EP, but not on the reissues. Here's a taste of the lyrics:

Once I had my heroes
Once I had my dream
But all of that is changed now
They've turned things inside out
The truth is not that comfortable, no

And mother taught us patience
The virtues of restraint
And father taught us boundaries
Beyond which we must go
To find the secrets promised us, yeah

That's when I reach for my revolver
That's when it all gets blown away
That's when I reach for my revolver
The spirit fights to find its way
The full lyrics are here. And here are a live version, the original track put to Moby's video, and a live Moby performance. [For whatever reason, I couldn't find the video for the sanitized Moby version online.]

For indexes of prior Sunday Song Lyrics, see here, here, and here.

UPDATE: Since I hadn't done one of these in a while, I thought I'd repost my explanation:

I am under no illusion that all (any?) the lyrics I select are classic or profound. That's not the point. I select lyrics because they are topical, in the news, powerful, profound, silly, absurd, enjoyable, or just on my mind for whatever reason, and might be of interest to some readers or provoke an interesting discussion. If you like the SSL, keep reading, and send me suggestions from time to time. If not, ignore these posts and read something else.
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Czars:

Others have pointed out that having offices called "czars" is an odd naming choice for a democracy. But czars weren't just authoritarians. They were ultimately authoritarians who left their country far poorer than their more democratic counterparts, lost a world war, and of course paved the way for an even worse system of government. The label "czar" thus doesn't historically connect to a model of strongman effectiveness -- it connects to a model of strongman failure.

(Of course, I recognize that czars in the federal government don't have even a fraction of the truly dictatorial power of their namesakes. But the label was used for a reason, presumably to evoke the positive connotation of strong authority that Gets The Job Done. Yet the specific strong authority that the label evokes proved to be unable to get the job done, at least under anything approaching modern conditions -- under any sensible definition of "job," possibly with the significant but narrow exception of the job of defeating Napoleon -- and unable in a way that culminated with a disaster of historic proportions.)

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