A while back I reported on an experiment I was undertaking in my first-year second-semester Introduction to Intellectual Property class. For the Spring 2007 semester, the required reading consisted entirely of material from a “coursepack” I had prepared, which contained only (a) the relevant statutory material (Patent Act, Copyright Act, Lanham Act) and (b) unedited judicial opinions. [If you want to see the cases I use, my syllabi are posted here].
My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there’s a lot of confusing junk in it, is an indispensable skill for any lawyer. If you are unable to do it – and I recognize that there are lots of lawyers out there who really are unable to do it – you are at an immense disadvantage in the practice of law (at least, in any practice that requires making legal arguments on behalf of clients); among other things, you will always be dependent on others who can do it (e.g., the authors of the treatises or hornbooks or articles or other secondary material on which you will necessarily have to rely) to do it for you, to tell you what the cases and the statutes mean. It is also very, very difficult; I have read a number of the cases that I include in my coursepack literally dozens of times, and there are still parts of them that remain inscrutable to me. Like most difficult things – playing the piano, reading and understanding 17th century poetry, surfing – it requires practice, and lots of it; the more you do it, the better you get at doing it.
You’d think, then, that we’d give our students lots and lots of practice, and lots and lots of help and guidance while they’re practicing, to help them master this critically important skill. But we don’t. In fact, we give them hardly any practice, and hardly any help and guidance, at all. All throughout law school we feed them a steady diet of edited, pre-digested cases, with all the “confusing stuff” – the stuff that just “gets in the way” of their learning the work-for-hire doctrine, or the elements of the patent infringement claim, or whatever it is we’re trying to teach them – taken out. All of the stuff that makes it hard to figure out what’s going on. But that’s precisely the point: it is hard. So how in God’s name are they ever going to learn how to do it if they never do it?
If you’re not familiar with legal education, you might think I was exaggerating, or even joking – but I’m not. It’s as though we were teaching graduate students in, say, 17th century English literature, and we had them read only edited, “bowdlerized” versions of Milton’s work – hey, you don’t really need to read Book II of Paradise Lost to get the “important stuff,” and it’ll just confuse you if you do.
Students do, it’s true, get exposure to complete, unedited opinions when they’re doing research – for papers, or for law review-type assignments, or the like. But except for one class (typically) on “Research & Writing,” they are expected to do that work entirely on their own, without any real help from people (like their professors) who actually know how to do it. Sink, or swim. Many sink.
I’ve now been doing this for 3 semesters, in two different classes (Intro to IP and Copyright Law), and while assessing the effectiveness of something like this is very difficult, here’s my take on how the experiment has been going. I’d give it somewhere between a B and a B+. Good, but could be better. I’m pretty sure I’m on the right track, and that the basic idea is a good one, though I’m not entirely certain yet that my implementation is as good as it should be.
I’m (pretty) certain that, by the end of the semester, (pretty much all of) the students are a lot better at being able to sit down and read a case through and extract meaning from it. They are, at least, not nearly as terrified of the the task as they are at the start of the semester – a good thing. They even start to take for granted their ability to do that – a very good thing; by the last few classes, they no longer find it odd that we can have a pretty intelligent discussion about trademark law based just upon their having read three or four of the key cases.
I’m also pretty certain that they’ve gotten better at managing their own confusion and ignorance – something I regard as one of the truly critical skills a lawyer needs to develop. You never know all that you need to know, in the law – “it depends” is always the correct answer, to every question. You never have enough facts, and you never know all you need to know about the law. Never. So being a good lawyer means knowing what you know, and knowing what you don’t know, and where the line is. So it’s a good thing for students to see that while they don’t understand what’s going on in some parts of KSR v Teleflex – nobody understands what’s going on in some parts of KSR v. Teleflex – they can still extract lots and lots of useful information about patent law from the opinion. Know what you know, and know what you don’t know.
I think they get better at skimming – at figuring out which parts of an opinion are critical and which are not, which parts you really have in order to understand to understand the court’s judgment and which you don’t (which, incidentally, means they get better at figuring out what’s a “holding” and what’s “dicta” . . .). In my experience, many students, when they’re doing research for a paper, have an insanely low threshold for reading cases; they cannot even imagine that one might have to read thirty or forty cases to really understand how the Supreme Court applies, say, the doctrine of “strict scrutiny” in First Amendment cases. That would take FOREVER!! But only if you’re really slow at it, as most of them are. They have to learn how to get fast(er), and I think this experiment is helping them.
They also start to understand that what a court says (and the meaning of what it has said) always depends on the “posture” of the case, and (for appellate courts) on the the standard of review.
All of that I kind of expected. But there was an unexpected benefit as well. One thing I was nervous about was the obvious need to reduce the total number of cases the class would be reading. I tried to select cases that don’t have too much “confusing junk” in them, but even so it’s hard work for them to get through the opinions, and I can only assign one or two per class. I was worried that their understanding of the substantive subject matter – the nuts and bolts of IP law – would suffer as a result. But I think the opposite may well be true. Casebooks edit out not only the “confusing stuff” but also the repetitive stuff; because the American Geophysical Union v Texaco case is in the “fair use” section of the Casebook, the court’s discussion of copyright ownership, or the scope of the reproduction right, will probably be omitted as having been covered elsewhere in the book. But it turns out – somewhat to my surprise – that the repetitive stuff is enormously helpful. It’s one thing to read, in the section on “copyright infringement,” that the plaintiff has to prove “copying” and “substantial similarity in protected material” in order to prevail, and to try to understand what that means. It’s quite another thing to read that in every case, over and over again, the same basic formulation of the elements of the copyright claim. And to notice that while the basic formulation stays pretty much the same, different courts, in different cases, might articulate the rule somewhat differently – hmmm, what’s up with that? I could be wrong, but I think my students understand the copyright infringement “test” more thoroughly for having encountered it so many times than they did when we focused on it just for a couple of classes.
It’s a lot more work this way – for the students, and for me. Some of that confusing stuff really is damned confusing, and we have to spend lots of our class time trying to sort it out. But I think I’m sticking with it.
Miles Davis Quintet Plays "'Round Midnight":
I've linked to a YouTube clip of the second Miles Davis Quintet before -- this was the famous quintet with Wayne Shorter, Herbie Hancock, Ron Carter, and Tony Williams that played together from 1964-1968. But last time the clip covered the band when they had just formed in 1964. Here's an excellent performance of the group playing late in their tenure; the tune is 'Round Midnight, and the place and time is Stockholm, 1967.
Peggy Noonan on GOP Leaders:
Peggy Noonan has a powerful essay in the Wall Street Journal on how Republican politicos in DC lost their way in the years of the Bush Presidency:
Many are ambivalent, deep inside, about the decisions made the past seven years in the White House. But they've publicly supported it so long they think they . . . support it. They get confused. Late at night they toss and turn in the antique mahogany sleigh bed in the carpeted house in McLean and try to remember what it is they really do think, and what those thoughts imply. And those are the bright ones. The rest are in Perpetual 1980: We have the country, the troops will rally in the fall. . . . What happens to the Republicans in 2008 will likely be dictated by what didn't happen in 2005, and '06, and '07. The moment when the party could have broken, on principle, with the administration – over the thinking behind and the carrying out of the war, over immigration, spending and the size of government – has passed. What two years ago would have been honorable and wise will now look craven. They're stuck. Mr. Bush has squandered the hard-built paternity of 40 years. But so has the party, and so have its leaders. If they had pushed away for serious reasons, they could have separated the party's fortunes from the president's. This would have left a painfully broken party, but they wouldn't be left with a ruined "brand," as they all say, speaking the language of marketing. And they speak that language because they are marketers, not thinkers. Not serious about policy. Not serious about ideas. And not serious about leadership, only followership.
The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
When the U.S. Supreme Court reads the federal Constitution as barring certain kinds of laws -- especially state laws -- people often raise three related objections:
The Justices are unelected, and not accountable to the people.
The Justices' decisions are very hard to change for the people to change (since a constitutional amendment requires a two-thirds vote in each House of Congress, or a hard-to-call convention, plus majorities in three quarters of the state legislatures).
The decision of nine judges in Washington, D.C. is interfering with contrary views of the people throughout the country.
Of course, if one thinks that the Constitution does indeed command a particular result, then one probably wouldn't raise these objections, largely because the Constitution was indeed enacted by the people (though usually a very different group of people than is now alive). But if one thinks the Justices read the Constitution wrong, these three objections exacerbate the error. And when a constitutional provision is very vague, these objections might be (to many) a reason to leave decisions in the hands of the democratically elected branches rather than in the hands of the Justices.
It's not clear, though, that the same objections play out quite the same way when we have a state Supreme Court interpreting a state constitution. In many states, Supreme Court Justices are indeed elected; in other states, they are at least accountable to the voters in retention elections. In most states, the state constitution is quite easy to change, generally requiring only placing a constitutional amendment on the ballot (which may be expensive if signatures need to be gathered, but which can often be done with no such expense by the people's representatives in the legislature) followed by a majority vote of the electorate. And the decision is at least made by Justices from one's own state, rather than by people in far-off Washington, D.C.
Consider, for instance, the California Supreme Court decision in the same-sex marriage case. California Supreme Court Justices are accountable to the people in retention elections, a weak form of accountability but still some accountability. The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that's required to reverse the court decision -- no need for the famously cumbersome Article V federal constitutional amendment process.
Naturally, if one thinks the California Supreme Court interpreted the state constitutional provisions incorrectly, the fact that their error can be easily corrected doesn't mean that it's not an error. But it might suggest that residents of California -- and especially of states where the constitution is easier to change and the Justices are elected in competitive races -- should be less concerned about Justices' ability to place their own interpretations on vague or ambiguous constitutional language.
France’s public broadcaster, France 2, has sued blogger-media critic, Philippe Karsenty, for libel. The lawsuit centers on Karsenty’s allegation that the scene, which France 2 broadcast in September 2000, of twelve-year old Muhammad al-Dura crouching behind his father in a Gaza intersection moments before he was reportedly shot and killed by Israeli gunfire was staged by Palestinians on the street and that France 2 and its Jerusalem bureau chief, Charles Enderlin, are now covering up the hoax.
The France 2 broadcast, filmed by France 2’s Palestinian cameraman, Talal Abu Ramah, with Enderlin’s voiceover stating that the father and son "are the target of fire from the Israeli positions" and that the son was shot dead, helped to fuel the Second Intifada in September 2000 and became an incendiary icon throughout the Middle East and beyond. The incident was memorialized throughout the Arab world, including on postage stamps in a number of countries, and became a symbol of Palestinian martyrdom and Israeli killing of children. The France 2 broadcast appears in the background of the video of Daniel Pearl’s beheading taken by his killers.
Subsequent investigations have raised serious questions about the source of the gunfire and, indeed, whether Palestinian activists on the scene staged the entire incident in collaboration with the France 2 camera crew. Writing in Atlantic Monthly in 2003, James Fallows concluded that whatever else happened to al-Dura, he was not shot by Israeli soldiers and that the rest remains a mystery.
I recently saw Karsenty present his case, together with outtakes he has obtained from the France 2 broadcast, on a panel featuring former CNN senior vice president and general counsel, David Kohler, and former veteran CBS news correspondent, Murray Fromson. Viewing the outtakes, it seemed obvious to my untrained eyes that the incident was staged. The father and son remain frozen in crouching position, ostensibly to avoid Israeli gunfire, even as others run right past them. Other TV crews are filming just a few feet away from the father and son, directly in the alleged line of fire. And the son changes his position and raises his elbow after he was reportedly killed.
Nonetheless, a French trial court ruled in October 2006 that Karsenty had committed libel. It is clear from the decision (I assume the accuracy of an unofficial translation) that French libel law puts a far more onerous burden on the defendant than does US law and contains little of the free speech protections that, as I mentioned in yesterday’s post, US courts have imposed on defamation law to prevent the chilling of speech. The French court required Karsenty to prove the truth of his allegations – not just that the event was staged, but that France 2 and Enderlin are covering up the hoax – and that Karsenty’s proof “be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.” The court also declined to view all the France 2 outtakes. In the United States, France 2 and Enderlin could not prevail unless they established that Karsenty published his claims knowing them to be false or with reckless disregard of the truth.
Karsenty has appealed and the French appellate court is due to issue its ruling on May 21. Karsenty is optomistic, in part because the appellate court did view the France 2 outtakes that, Karsenty believes establish that the al-Dura incident was staged.
The kind of media manipulation to which the al-Dura incident points is all too common in reporting from the region. Recall the initial Palestinian reports in September 2000 of an Israeli massacre of 3,000 Palestinian civilians in Jenin, broadcast without question by CNN, NPR, the BBC, and others, while the truth turned out to be 52 Palestinians killed, most of whom were armed combatants. (See here and here.) More recently, Hamas has staged and Western media reported electricity shortages in Gaza, replete with candles purporting to provide needed light while, as it turned out, screens blocked sunshine from streaming in through the window.
Certainly, some media outlets seem all too eager to transmit reports of Israeli atrocities. But the problem is far broader and deeper than that. Both broadcast and print journalists face tremendous pressure to produce under a highly competitive 24/7 news cycle. At the same time, many news organizations have sharply reduced their staff of foreign correspondents. As a result, they are increasingly reliant on local stringers and camera operators to report on local stories. In areas of conflict, it is inevitable that more than a trivial percentage of local reporters will be partisans and that video footage will be designed or doctored to favor one side or the other.
One hopes that major news organizations are able and willing to weed out the vast majority of questionable reporting, just as CNN refused to broadcast the al-Dura footage. But there are, of course, no guarantees. And, as I emphasized in an ealier post, fact-checking, like quality original reporting, costs a lot of money.
For their part, bloggers do an admirable job of exposing media failures. At the same time, for better or for worse, the Internet serves as an unfiltered outlet for the stories and footage that media organizations deem insufficiently trustworthy to carry.
The California Legislature's Enactment of Same-Sex Marriage:
Some defenders of the California Supreme Court's same-sex marriage decision have argued that it's actually consistent with the democratic process, because the California legislature had twice enacted same-sex marriage, and the Governor vetoed the bills on the grounds that the California Supreme Court should decide the matter. I heard this from another panelist on a KQED-FM radio show I was just on; you can also see something similar at Lawyers, Guns and Money, and elsewhere.
I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.
Now if the California Supreme Court is right that the initiative statute violates the California Constitution, then only a state constitutional amendment (which will likely be on the November ballot) can change that. But there's no doubt that it is the Court that made this decision, overturning the 61.4%-38.6% 2000 vote on the matter. It is that 2000 vote that's the only authoritative non-judicial statement on the matter. The Legislature had no power to itself change this statement, even had the Governor cooperated.
Incidentally, my sense is that this explains the Governor's veto statement that he wanted to see the Court's views on the matter: If the Court had concluded that the 2000 initiative statute was constitutionally permissible, then the Legislature and the Governor would have had no power to simply enact same-sex marriage; they would have had to do so through a statute that called for a popular vote on the subject.
Responding to an NGO Monitor Report accusing Human Rights Watch of anti-Israel bias (a topic that has been covered here before), HRW's Middle East Director Sarah Leah Whitson replies, "It's hard to comprehend how NGO Monitor thinks that merely devoting an alleged 9% of Human Rights Watch's energies in the Middle East to Israel constitutes a disproportionate focus." Maybe because no objective observer thinks that in a region populated with such human rights stalwarts as Egypt, Jordan, Kuwait, Syria, Iran, Saudi Arabia, Yemen, Hamas-controlled Gaza, Hezbollah-controlled South Lebanon, and Libya, Israel is responsible for anything approaching 9% of the human rights abuses in the region, whatever one thinks of its policies regarding the Palestinian territories.
I can see the argument that a disproportionate focus on Israel is appropriate, because Israel should be held to higher standards as a liberal democracy, and because liberal democracies are far more likely to be responsive to groups like Human Rights Watch than are countries like Saudi Arabia. Instead, Whitson claims that the disproportionate focus isn't disproportionate to begin with, and indeed it's incomprehensible that anyone might think otherwise, which is another nail in HRW's credibility coffin.
Whitson adds: "Israel today is the only country committing collective punishment by blockade because it is the only country that, directly and through its pressure on Egypt, is blocking all borders of a territory in order to squeeze its civilian population." So if Israel and Egypt close the border to Hamas-controlled Gaza, only Israel is engaging in "collective punishment." And Israel is doing so "to squeeze" the "civilian population," not because Hamas has been importing rockets (which it then uses to attack Israeli civilians) and other weaponry through whatever holes it can find in the borders, and meanwhile attacking Israeli border positions whenever they are opened for humanitarian purposes.
Federalist Society Consumer Credit Protection Conference:
The program and participants list for the Federalist Society Consumer Credit Protection Conference has been updated. The program will be Tuesday May 20 at the National Press Club. Information and registration info is available here. The first panel will be on subprime lending and the second will be on credit card regulation. Lunch is included and the program is free for students, government employees, and hill staff.
Tonight I was reading Frederick Jackson Turner’s "The Significance of the Frontier in American History." The first footnote just jumped off the page:
A paper read at the meeting of the American Historical Association in Chicago, July 12, 1893. It first appeared in the Proceedings of the State Historical Society of Wisconsin, December 14, 1893, with the following note: "The foundation of this paper is my article entitled 'Problems in American History,' which appeared in The Ægis, a publication of the students of the University of Wisconsin, November 4, 1892... It is gratifying to find that Professor Woodrow Wilson--whose volume on 'Division and Reunion' in the Epochs of American History Series, has an appreciative estimate of the importance of the West as a factor in American history--accepts some of the views set forth in the papers above mentioned, and enhances their value by his lucid and suggestive treatment of them in his article in The Forum December, 1893, reviewing Goldwin Smith's 'History of the United States.'" The present text is that of the Report of the American Historical Association for 1893, 199-227.
This is the sort of language one uses to make it clear that one’s ideas might be falsely attributed to another author, who did not properly attribute the source of borrowed ideas. BTW, Turner had been Wilson's student at Johns Hopkins.
My suspicions received some support in a passing sentence in a 1933 scholarly article. Reviewing Turner’s frontier thesis in the 1933 Pacific Historical Review, Frederic L. Paxson likens Turner to Columbus and calls him a prophet. In a footnote, Paxson quotes Wilson’s 1893 article, noting that Wilson does not mention Turner in his 1893 piece, which in part set out Turner’s thesis:
"When the great westward migration began everything was modified. . . Beyond the mountains . . . a new nation sprang up. . . . Our continental life is a radically different thing from our life in the old settlements. . . . The formative period of American history . . . did not end in colonial times or on the Atlantic coast . . . nor will it end until we cease to have frontier communities and a young political life just accommodating itself to fixed institutions. . . . Almost all the critical issues of our politics have been made up beyond the mountains." Woodrow Wilson, "Mr. Goldwin Smith's 'Views' on our Political History," in Forum, xvI, 495 (December, 1893); but though aware of the new revelation, Wilson failed to name the prophet [i.e., Turner].
So, not only was Woodrow Wilson the most racist of the post-Reconstruction presidents (a man who systematically re-segregated Washington and demoted African American government employees), but he might have been a plagiarist as well.
UPDATE: For background on Wilson's "Dixiecrat" views, see this analysis of the work of Lawrence J. Friedman:
It was Inauguration Day, and in the judgment of one later historian, "the atmosphere in the nation's capital bore ominous signs for Negroes." Washington rang with happy Rebel Yells, while bands all over town played 'Dixie.' Indeed, the Chief Justice of the Supreme Court, who swore in the newly elected Southern president, was himself a former member of the Ku Klux Klan. Meanwhile, "an unidentified associate of the new Chief Executive warned that since the South ran the nation, Negroes should expect to be treated as a servile race." Somebody had even sent the new president a possum, an act supposedly "consonant with Southern tradition."
This is not an alternate world scenario imagining the results of a Strom Thurmond victory in the 1948 election; it is the real March 4, 1913, the day Woodrow Wilson of Virginia moved into the White House. . . .
An openly racist Southern presidency had existed fewer than 30 years earlier [than Strom Thurmond's 1948 candidacy]: Wilson's. His White House had not only approved of the South's discriminatory practices (many of which were also widespread in the North), it implemented them in the federal government. Had Dixiecrat dreams come true, a Thurmond administration would have revived Woodrow Wilson's racial policies. . . .
Wilson's racist views were hardly a secret. His own published work was peppered with Lost Cause visions of a happy antebellum South. As president of Princeton, he had turned away black applicants, regarding their desire for education to be "unwarranted." He was elected president because the 1912 campaign featured a third party, Theodore Roosevelt's Bullmoose Party, which drew Republican votes from incumbent William Howard Taft. Wilson won a majority of votes in only one state (Arizona) outside the South. . . .
Upon taking power in Washington, Wilson and the many other Southerners he brought into his cabinet were disturbed at the way the federal government went about its own business. One legacy of post-Civil War Republican ascendancy was that Washington's large black populace had access to federal jobs, and worked with whites in largely integrated circumstances. Wilson's cabinet put an end to that, bringing Jim Crow to Washington.
Wilson allowed various officials to segregate the toilets, cafeterias, and work areas of their departments. One justification involved health: White government workers had to be protected from contagious diseases, especially venereal diseases, that racists imagined were being spread by blacks. In extreme cases, federal officials built separate structures to house black workers. Most black diplomats were replaced by whites; numerous black federal officials in the South were removed from their posts; the local Washington police force and fire department stopped hiring blacks. Wilson's own view, as he expressed it to intimates, was that federal segregation was an act of kindness. In historian Friedman's paraphrase, "Off by themselves with only a white supervisor, blacks would not be forced out of their jobs by energetic white employees."
According to Friedman, President Wilson said as much to those appalled blacks who protested his actions. He told one protesting black delegation that "segregation is not a humiliation but a benefit, and ought to be so regarded by you gentlemen." When the startled journalist William Monroe Trotter objected, Wilson essentially threw him out of the White House. "Your manner offends me," Wilson told him. Blacks all over the country complained about Wilson, but the president was unmoved. "If the colored people made a mistake in voting for me," he told The New York Times in 1914, "they ought to correct it."
I argued in yesterday’s post that copyright burdens speech. Not all who posted comments agreed, but assuming I’m correct (and I’m not the only one to make that claim; others, including Eugene Volokh, have made similar arguments), what, if anything, should be done about it?
Sometimes the law burdens speech for very good reason, such good reason that we favor the law over the speaker. The obvious, regularly noted example is forbidding falsely crying “fire” in a crowded theater. Laws against defamation, false advertising, misleading securities filings, and incitement to immediate violence are others, as are prohibitions on using sound trucks in a residential neighborhood and blasting music above a certain decibel level at an outdoor rock concert.
Moreover, even if we do not believe that the burden on speech is justified (I realize, of course, that “we” is artificial since people often don’t agree – see the comments to my last post!), that does not necessarily mean that the First Amendment as currently interpreted forbids the speech burden. The First Amendment provides that “Congress shall make no law … abridging freedom of speech.” But First Amendment doctrine is highly complex and First Amendment protections far more qualified than the amendment’s sweeping, absolute language suggests.
For that reason, I distinguish in my book between First Amendment doctrine and free speech policy. For example, I think First Amendment doctrine provides that Congress may not abolish the fair use defense because that would constitute an unconstitutional abridgement of speech. But free speech policy – or First Amendment “values” -- might go further. In order for copyright law to best promote First Amendment values, including the value of expressive diversity, courts should interpret fair use broadly and Congress should limit copyright holders’ exclusive rights to prevent them from using copyright as a vertical restraint to suppress competition from new media. Courts and Congress should do that even if the First Amendment does not require it.
Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.
As I argue in Copyright's Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.
Last September, the 10th Circuit Court of Appeals held that Congress’ restoration to copyright of certain works already in the public domain alters the traditional contours of copyright protection and thus must be subject to First Amendment scrutiny. The Court reasoned that the idea/expression dichotomy and fair use are inadequate free speech safeguards vis-à-vis removing works from the public domain. It remanded the case to the district court to determine whether the Restoration Act is a content-based or content-neutral speech restriction, and thus whether strict scrutiny or some form of intermediate scrutiny should apply.
Whether the Copyright Act is a content-based or content-neutral speech restriction under First Amendment doctrine is a complex question, which I have previously debated with Eugene. (I think it’s content-neutral.) But whichever the courts determine, it is clear that Copyright Act amendments that alter copyright’s traditional contours should be held to run afoul of the First Amendment when copyright’s internal free speech safeguards provide inadequate protection. As I argue in my book, the anticircumvention provisions of the Digital Millennium Copyright Act, which the legislative history refers to “paracopyright,” should be ripe for First Amendment challenge.
A federal grand jury indicted a Missouri woman Thursday for her alleged role in perpetrating a hoax on the online social network MySpace against a 13-year-old neighbor who committed suicide. Megan Meier, 13, hanged herself in her bedroom after being targeted in a MySpace hoax. Lori Drew of suburban St. Louis is said to have helped create a false-identity MySpace account to contact Megan Meier, who thought she was chatting with a 16-year-old boy named Josh Evans. Josh didn't exist. Megan hanged herself at home in October 2006 after receiving cruel messages, including one stating the world would be better off without her. Salvador Hernandez, assistant agent in charge of the Los Angeles FBI office, called the case heart-rending. "The Internet is a world unto itself. People must know how far they can go before they must stop. They exploited a young girl's weaknesses," Hernandez said. "Whether the defendant could have foreseen the results, she's responsible for her actions." Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl.
This case involves a terrible tragedy. But the government's legal theory, based entirely on the Computer Fraud and Abuse Act, 18 U.S.C. 1030, is very weak. Legally speaking, the prosecution is a real stretch. In my view, the courts should dismiss the indictment. In this post, I'll explain why.
To understand this case, you need to understand the government's theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).
Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).
But these arguments are a real stretch for three reasons.
Problem One: The first major hurdle is a legal question that I wrote an article on in 2003: Is it a federal crime to violate contractual limitations on use of a computer? The federal statute, 18 U.S.C. 1030, generally prohibits accessing a computer "without authorization" or "exceeding authorized access." But what makes an access "without authorization"? If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?
In my article, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 NYU L. Rev. 1596 (2003), I argue that the answer should be "no." I won't recite the legal arguments here, as you can just read the article itself. (You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon.) However, I will point out that the MySpace case is to my knowledge the very first federal indictment that has tried to claim that violations of Terms of Service for an Internet account amounts to a crime under Section 1030. In fact, I wrote my NYU article in part because I figured it was only a matter of time before a sympathetic case came along and some aggressive prosecutor would try the argument and see if it flew. It looks like this is the test case.
Problem Two: The second and third legal hurdles to the prosecution are less intellectually interesting but clearer and easier for the defense to make. The first problem is that the crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew's conscious object to have violated the TOS. But here there is no evidence that Drew even read the TOS. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally. (Paragraph 11 of the indictment lamely notes that a copy of the TOS was "readily available" to MySpace Users if they went looking for it, clicked the link, and read it. But the statute requires intent, so whether the TOS was "readily available" is irrelevant.)
Problem Three: The third hurdle, and perhaps the easiest way for the defense to win, is that the government's theory requires proof that the goal of the conspiracy was to obtain information. The alleged underlying crime here is 18 U.S.C. 1030(a)(2)(C), which prohibits exceeding authorized access to a computer to get information. Think hacking in to get credit card numbers, to get a copy of a special computer file, or to take data from a database. But based on the facts discussed in the indictment and the news stories, it doesn't seem that Drew had the intent to obtain information from her victim. Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her. That may not make it morally or ethically any less objectionable; indeed, perhaps it is more so. But the statute wasn't violated unless Drew was acting to try to obtain information, and it doesn't seem like that was her intent.
UPDATE: Over at Concurring Opinions, Daniel Solove agrees with most of the analysis but comments on this last issue: "I'm not so sure I agree. The news accounts I read about the case indicated that one of Drew's primary motivations for creating the fake profile was to learn information from Megan Meier. She wanted to know information from Megan that pertained to her own daughter, who was a classmate of Megan's. The harassing came later on." I haven't read the news reports closely, so maybe we'll have to wait and see how the facts unfold on the third issue.
Orin mentioned the upcoming ACS National Convention. In contemplation of a hypothetical Obama presidency, does anyone know what the public perception of ACS is? In other words, if Obama wins, will his nominees be interrogated about ACS affiliations like Federalist Society members have been? Will the Washington Post run stories on the ACS influence over the Justice Department? Will ACS members go out of their way to deny membership? Will an interation of the shoe being on the other foot have any lasting impact of taming this sort of behavior?
Although these questions seem like they are phrased tendentiously, I sincerely wonder about this. I have been distressed by what seems like the real dishonesty of some of the attacks on the Federalist Society and I'm wondering whether the absurdity and nastiness will continue to escalate or whether there will be some sort of truce and step in the direction of respect.
If I had to guess, I'd predict that Republicans and the media will not make a big deal out of ACS affiliation, but that doing so will do nothing to bring about reciprocity toward future Republican appointees.
Also, I wonder whether Republicans would be willing to filibuster Democratic judicial nominations. On this point, I have no strong intuition as to what to expect.
Update:
A couple of Commenters noted that the Republicans used delaying tactics with Clinton nominees--that certainly is true. But they were in the majority at that time. The question I was wondering is whether as members of the minority they would actually formally filibuster nominees. The two issues may essentially the same, but it is not obvious to me that using informal obstructionist tactics when in the majority automatically means that they would use a formal filibuster when in the minority.
"Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
Rick Hasen (Election Law Blog) notes that "it seems very likely an initiative overturning the decision through a constitutional amendment will qualify and appear on the November ballot" (see here) and opines:
This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.
Congratulations to California Same-Sex Married Couples:
In all this talk of constitutional law, it's easy to miss a human dimension: There are lots of same-sex couples in California who are already married under foreign law, who are already married in their own consciences and religious traditions, and who have long wanted to have their marriages recognized in the state in which they live.
Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them happy, and happy for the right reason -- the common human desire to have them, their families, their love, and their mutual commitment recognized. So congratulations to all these couples, those whom I know well personally and the many more whom I don't.
Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:
Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."
Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."
Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."
Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:
There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.
[Footnotes to above: See, for example, Civil Code section 51 (barring sexual orientation discrimination in the provision of services by any business establishment); Government Code sections 12920 (barring sexual orientation discrimination in employment), 12955 (barring sexual orientation discrimination in housing), 11135, subdivision (a) (barring sexual orientation discrimination in any program operated by, or that receives any financial assistance from, the state); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 466-475 (Gay Law Students) (Cal. Const. prohibits sexual orientation discrimination by public utility). See, for example, sections 297 et seq., 9000, subdivisions (b), (g); Welfare & Institutions Code section 16013, subdivision (a); Sharon S. v. Superior Court (2003) 31 Cal.4th 417; Elisa B. v. Superior Court, supra, 37 Cal.4th 108....]
Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts) and same-sex domestic partnership benefits (Vermont).
Now the California Supreme Court majority does say that "our reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment does not suggest that an individual’s entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature’s recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status."
Yet the majority's citing those past legislative decisions — and going on to say that "Indeed, the change in this state’s past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; Governor’s Exec. Order No. B-54-79 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].)" — means that the Justices in the majority must see legislative decisions as relevant. Maybe at least one Justice of the 4-to-3 majority was indeed swayed by the body of legislative pro-gay-rights judgment; or even if the argument was makeweight, the majority must think that some of the readers would be swayed by these legislative judgments. And these legislative judgments are seen as relevant even in an area (same-sex marriage) different from that in which the initial legislative judgments took place.
Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative. (The decriminalization of same-sex sexual conduct, which the California Supreme Court majority cited as evidence of a "change in this state’s past treatment of gay individuals and homosexual conduct," is likely the best example.)
But it seems to me that decisions such as the California, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), slippery slope risks have to be taken seriously.
California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
"[T]o the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional." The opinion is here. The vote is 4-3, which Chief Justice George joined by Justices Kennard, Werdegar, and Moreno in the majority, and Justices Baxter, Chin, and Corrigan dissenting on the key issue. (Justice Corrigan's dissent seems to suggest that some form of domestic partnership is constitutionally mandated, but that there's no constitutional requirement that it be labeled "marriage"; but the dissent doesn't seem to be entirely clear on this, perhaps precisely because domestic partnership is provided and the issue of whether it's mandated is thus not squarely on the table.)
The opinion is entirely based on claims under the California Constitution, and does not rely on federal constitutional claims. This seems that the U.S. Supreme Court cannot review this; and it also means that a state constitutional amendment -- which seems likely to be on the ballot this November -- could overturn the decision.
Here's the court's reasoning, in a nutshell:
1. The California Constitution's Due Process Clause and Privacy Clause (there's an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).
2. The California Constitution's Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such a discrimination.
3. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination.
4. The ban on same-sex marriage can't pass muster under strict scrutiny (pretty much a foregone conclusion, given how demanding strict scrutiny generally is).
California Supreme Court Holds That There Is A State Constitutional Right to Same-Sex Marriage in California:
The opinion is here, via Howard. The holding:
We . . . conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
Applying strict scrutiny to the California marriage statute, the court concludes that:
[T]he purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. . . . Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
Americans are basically pro-immigrant but ambivalent about it. This ambivalence is reflected in polls, which of course provide different results based on how questions are asked. For example, last year a CBS News poll asked, "Should illegal immigrants be prosecuted and deported or shouldn't they?" And 69% of respondents favored deportation. When the same interviewers asked the same respondents what should happen to illegal immigrants who have lived and worked in the U.S. for at least two years, and then offered a specific alternative to deportation, only 33% favored deportation; 62% said they should be given a chance to keep their jobs and eventually apply for legal status.
When a separate Gallup poll asked a similar question but offered four alternatives, just 13% favored deportation, and 78% said illegal immigrants should be allowed to keep their jobs and apply for citizenship.
In other words, for all the loud talk we've heard in recent months, via cable news, talk radio and the blogosphere, the American public seems not to have lost confidence in the melting pot. And rightly so, because there's plenty of evidence that assimilation is proceeding apace. True, it doesn't always seem that way, but we all know that perceptions can sometimes be illusions.
Riley goes on to note that the "melting pot" continues to operate, even if assimilation is not as rapid or complete as it may have been in the past.
With respect to linguistic assimilation, which is one of the more important measures because it amounts to a job skill that can increase earnings, the historical pattern is as follows: The first generation learns enough English to get by but prefers the mother tongue. The children of immigrants born here grow up in homes where they understand the mother tongue to some extent and may speak it, but they prefer English. When those children become adults, they establish homes where English is the dominant language.
There's every indication that Latinos are following this pattern. According to 2005 Census data, just one-third of Latino immigrants in the country for less than a decade speak English well. But that proportion climbs to 75% for those here 30 years or more. There may be more bilingualism today among their children, but there's no evidence that Spanish is the dominant language in the second generation. The 2000 Census found that 91% of the children of immigrants, and 97% of the grandchildren, spoke English well.
The problem is not with immigration or a lack of assimilation, Riley suggests, but ideological opposition to assimiliation from some American elites. If social conservatives or others are concerned about immigration, this is where they should target their ire.
If American culture is under assault today, it's not from immigrants who aren't assimilating but from liberal elites who reject the concept of assimilation. For multiculturalists, and particularly those in the academy, assimilation is a dirty word. . . .
But social conservatives who want to seal the border in response to these left-wing elites are directing their wrath at the wrong people. The problem isn't the immigrants. The problem is the militant multiculturalists who want to turn America into some loose federation of ethnic and racial groups. The political right should continue to push back against bilingual education advocates, anti-American Chicano Studies professors, Spanish-language ballots, ethnically gerrymandered voting districts, La Raza's big-government agenda and all the rest. But these problems weren't created by the women burping our babies and changing linen at our hotels, or by the men picking lettuce in Yuma and building homes in Iowa City.
It's an interesting argument, and one with which I am quite sympathetic. While illegal immigration is a concern, and border security is a real issue, immigration has been a boon to this nation, and there is no reason that it should not continue to be in the future.
ACS National Convention:
On June 12-14, the American Constitution Society is hosting its National Convention in Washington, DC. I spoke at the ACS Convention in 2005, and the experience was terrific (as blogged here). I'm happy to say that I'll be on a panel again this year, as are my co-bloggers Randy Barnett and Dale Carpenter. You can see the schedule for this year's convention here.
The latest score on farm legislation: Congress 1, President Bush 0. And there's a good chance for a shutout within the next few days.
Wednesday afternoon, the House of Representatives overwhelmingly passed a much-debated Farm Bill, with a veto-proof 318-106 vote. The measure, stuffed with lawmakers' pet projects for local farmers, now moves to the Senate, where it is also likely to pass.
Bush, now traveling in the Middle East, has threatened to veto the $290 billion bill because it gives generous subsidies to farmers, many of whom are now reaping the benefits of higher food prices.
"Farm income is expected to exceed the 10-year average by 50% this year, yet Congress' bill asks American taxpayers to subsidize the incomes of married farmers who earn $1.5 million per year," he said in a statement Tuesday.
Nonetheless, if it passes the Senate by a two-thirds majority, the president's veto would be moot. Still, Bush is likely to try--Congress has only overridden his veto once in the past seven years. It's also a smart move for him. As a lame duck president, he can call for reductions in government spending, then put the blame on a Democrat-controlled Congress for going over budget in an election year.
The "farm bill" is actually far more than funding for agriculture programs. The measure passed Wednesday increases funding for nutrition programs by $10.4 billion, provides $1 billion for renewable-energy investments, increases conservation spending by $7.9 billion and adds $84 million to international food aid and nutrition programs.
The National Food Bank Network praised the bill, which provides $1.25 billion to food banks. The bill also cuts the corn ethanol tax credit [slightly to 45 cents a gallon], redirecting the money to incentives to improve research on cellulosic ethanol [subsidized at $1.01 a gallon].
But it's also laden with pork. According to Ryan Alexander, president of the watchdog group Taxpayers for Common Sense, the bill includes "tax breaks for horse racing and timber companies, millions for salmon fishermen and subsidies to millionaire farmers." The group says just 8% of all producers receive 78% percent of the subsidies in the farm legislation. . . .
When the current farm bill was proposed in February 2007, Bush wanted to provide subsidies only for farmers with incomes under $200,000 per year. The bill that just passed the House would provide subsidies for farmers who make up to $750,000 annually, $1.5 million for couples.
It is nonsense to continue subsidizing ethanol, propping up food prices, and providing other forms of government welfare for the rich.
UPDATE: Here is an example of the sort of provisions that lobbyists got inserted into the farm bill.
Herring v. United States, and "Who Are The Police"?
The petitioner's merits brief was recently filed in Herring v. United States, a really interesting Fourth Amendment case out of the Eleventh Circuit that will be argued before the Supreme Court in the fall. I wanted to offer some preliminary thoughts on the case.
First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.
The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.
Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.
Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.
Consider how existing doctrine looks if you view "the police" as only referring to Officer Anderson, the officer who actually arrested and searched Herring. He acted perfectly appropriately, it seems. Having heard from the warrant clerk that a warrant existed, he not only acted in reasonable reliance, he quite possibly also had probable cause to arrest Herring ("quite possibly" because it's not entirely clear how the mistaken claim of a warrant can be factored into the probable cause analysis). From his standpoint, this was all a perfectly innocent mistake caused by someone else's inadvertent error. Under existing doctrine, the evidence comes in.
On the other hand, try construing "the police" as a collective entity of the entire government. First, they no longer seem to have probable cause: if you took all the people who know about Herring and put them in a room, they would realize that they didn't have probable cause (at least based on what we know). Second, there is no longer reasonable reliance; "the police" as a whole weren't acting in reasonable reliance on some other entity, but rather had made the apparent error themselves. The evidence stays out.
So what's the right answer? I'm not entirely sure, at least yet. However, my sense is that the answer that fits best with the rest of Fourth Amendment law is that "the police" should mean Anderson himself. That's clearly how probable cause determinations are traditionally made. What matters is what that arresting officer knew, or what the affiant wrote in the warrant application, not what was known to all members of the government if you imagined them all in the same room sharing what they knew about the case. Given that, it's not clear to me why you would treat the "reasonable reliance" issue differently.
Second, I think you run into serious problems trying to identify who "the police" are if you start to go beyond the officer who actually made the arrest and conducted the search. For example, should warrant clerks count? Should clerk's offices count? Should officers in other states count? Police officers in other countries? Confidential informants? It may be possible to come up with an answer to these questions, but my sense is that it's actually pretty hard. I think the Justices might explore this issue and then in the end conclude that it's just not feasible to do.
I think there are two major objections to defining "the police" as the individual officer. The first is the fear that agents of the state will act in bad faith. A corrupt police officer might tell another police officer that there's a warrant out for a suspect's arrest, and when the second officer arrested the suspect, the evidence would still come in. This is a concern, but it's also a concern in the warrantless context; one officer could always make up facts tending to create probable cause. But as best I can recall, I haven't seen any evidence that it is an actual (as compared to hypothetical) problem.
The second argument is that an exclusionary rule is needed to encourage better government databases. But at least so far, I'm not convinced that there aren't easier ways to encourage better databases beyond an exclusionary rule. That's especially true because the folks that feel the brunt of the exclusionary rule are usually the individual officers in the field who make the arrest: Depending on the local government picture, they may have only limited abilities to pressure the computer database people to do better. The facts of Herring bring this out in particular; Officer Anderson in Coffee County probably can't push Dale County to do a better job with their database. Given that there is no particular incentive for governments to maintain poor arrest warrant databases, I'm unconvinced that suppression would be useful here.
Anyway, those are my tentative thoughts. The case isn't going to be argued until the fall, so there's certainly more than enough time to change my mind.
Attorney General Hillary Clinton? Secretary of State? Justice?
What would Hillary Clinton Want from Obama? Is it the Vice Presidency? Jim might well be right that Obama might have good reason to offer Clinton this, and it might even make for a strong ticket (though I'm not sure that would be so). But I wonder whether Hillary would want this. The Vice Presidency is a notoriously low-power job. A President who genuinely trusts the Vice President may bring the Vice President informally into lots of important decisions (consider Bush and Cheney), but I doubt that Obama would be willing to do this with Clinton, or that Clinton would much like this sort of role.
The Vice Presidency is often a stepping-stone to the Presidency, but I doubt that it would be for Hillary, who'll be 69 in November 2016 — quite old for a first-term President, notwithstanding Reagan and McCain. Query how the higher life expectancy for women plays out here; query also how the conventional wisdom that men are seen as aging more gracefully than women (I stress "seen" here, because that's the relevant matter) might come into play. But I do suspect that she won't see herself as a viable 2016 candidate, and a 2012 insurgent run against a President Obama would likely be impossible if she's part of the Administration.
Nor would running as Vice-President and losing increase her chances of being the Presidential nominee in 2012; if anything, it would likely decrease them. Maybe she might just like the historic element of being the first female Vice President, but I doubt it.
What then might Clinton want more than her job as Senator? How about Attorney General or Secretary of State? Would it look bad for Obama to make this sort of offer before the election? (My sense is that primary rivals do sometimes get Cabinet positions, consider Bush Sr. and Jack Kemp, but that no deal is generally made beforehand.) How about Supreme Court Justice, for which there is something of a precedent in the Eisenhower-Warren situation, though I understand that it's not clear whether there had been an explicit deal?
Would she want those sorts of positions? Would she be an asset to the campaign if such a deal were announced beforehand? What if no such official deal were announced, but a quiet offer and acceptance led her to withdraw, publicly endorse Obama, and enthusiastically campaign for him?
This is way outside my area of expertise, so it may well be that all these options are nonstarters, and that I'm mistaken about her likely lack of enthusiasm for the Vice Presidency. Still, I thought these might be interesting alternatives to discuss.
UPDATE: Commenter GV, writes "What reason would Obama have to offer Clinton anything? Since Indiana, she has stopped attacking him, so the primary no longer hurts him. She has already said she'll campaign for him if she loses. It's clear to everyone now, even Hillary, that this race is over." I take it that one reason would be to win over some of the Hillary partisans who might otherwise be miffed at how he and his voters have treated their candidate, and who might therefore stay home come election day.
Ohio Attorney General Marc Dann has finally resigned. Based on the early reports, it does not appear that he was able to strike any exit deal to ensure a soft landing or protect himself from prosecution. More here and here.
Until Governor Ted Strickland appoints a successor, First Assistant Attorney General Tom Winters will serve as AG. Here is Winters' memo to AG personnel.
Obama probably has the power to get Clinton to drop out.--
There are three ways to get someone to do something: You persuade them, you offer them some benefit, or you threaten them with harm.
Leaving aside the last method (threats), so far inducing Hillary Clinton to drop out has focused mostly on persuasion. Yet the possibility of Barack Obama’s paying Clinton’s $20 million campaign debt (much of which is owed to herself) is one benefit that could be offered to Clinton — and has been broached.
The more obvious payoff would be to offer her the Vice Presidential slot on the ticket. If Obama really wants Clinton to end her campaign now, it is probably within his power to do so. But the price might be more than he wants to pay.
As I wrote in yesterday’s post, my book, Copyright’s Paradox, explains that copyright serves both as an “engine of free expression” and silencer of free expression. Yesterday, I focused on how copyright still serves as an engine of free expression in the digital age, albeit an engine of more modest proportions than the Supreme Court’s moniker suggests.
Today I look at the other side of the equation — how copyright law burdens speech. I will emphasize at the outset that the fact that copyright burdens some speech is NOT reason in and of itself to abolish copyright or to find that copyright law violates the First Amendment. Rather we must tailor copyright to minimize its speech burdens while still enabling copyright law to serve as engine of free expression. (I do argue in my book that copyright’s duration and scope have expanded so much that, in its current dimensions and configuration, copyright burdens too much speech.)
Very basically, if your movie, song, graphic, book, or blog is protected by copyright, I can’t copy from it in my own speech unless you give me permission (express or implied) or unless my copying falls within an exception to your exclusive rights, like fair use. So copyright law can effectively prevent me from speaking using the words, images, or sounds of my choosing.
If the government were to do that directly and because it didn’t like my choice of locution, say by forbidding me from distributing copies of the Koran or the Communist Manifesto on a street corner, it almost certainly abridge my First Amendment right to free speech. As the Supreme Court has held repeatedly, the government abridges speech in such cases even if the speaker could convey his message using other words.
Yet, like copyright’s role as engine of free expression, the question of when and how copyright law can truly be said to burden speech (let alone violate the First Amendment) is far more complex than might initially meet the eye. Perhaps the easiest cases – and the closest to what we usually think of as censorship — are those in which the copyright owner withholds permission and sues or threatens to sue for infringement because he wants to suppress the speaker’s message.
Here’s an example given to me by a reader of this blog: During the 2004 presidential campaign, opponents of John Kerry sought to highlight what they viewed as Kerry’s radical Left views by offering the public free PDF copies of the book “The New Soldier,” which Kerry co-authored in 1971 together with the Vietnam Veterans Against the War. According to a post on Free Republic, the book’s co-editor, a close friend of Kerry, used the notice-and-takedown procedures of the Digital Millennium Copyright Act to force Yahoo to shutdown the web site that offered the free copies as part of a concerted effort to suppress circulation of the book for political reasons.
But sometimes the copyright holder’s reasons for suppressing the allegedly infringing speech are mixed or entirely commercial. The Margaret Mitchell Estate sought to enjoin publication of Alice Randall’s racy sequel to Gone With the Wind from the viewpoint of a slave both because it objected to her message (perhaps) and because it wished to license only those sequels that furthered the approved image and economic value of the original work.
And often copyright holders are, in principle, quite willing to grant permission but insist on a license fee that exceeds the speaker’s ability to pay. Speakers may be unable to afford various goods, ranging from a computer to a printing press, needed for effective speech. Yet we don’t normally limit property rights in those to goods in order to give speakers an entitlement to own or use them. Why should copyright be viewed differently? Why, for example, should we support an interpretation of fair use that heavily favors noncommercial uses, like educational documentary films, when we don’t require owners of top-of-the-line movie cameras to make them available to documentary film makers?
Many commentators favor treating copyright differently because copyright law creates an artificial scarcity in a good – original expression – that, but for copyright law, would be available at the average cost of production. That argument gets us part of the way, but ultimately, I think, the answer lies in distributive free speech policy. Fostering expressive diversity (in the sense of speech from diverse and antagonistic voices, not product differentiation) is a cornerstone of American information, telecommunications, and free speech policy. The balance between copyrights and fair use should be struck to promote that goal.
The same is true when we examine media markets as a whole. As I have detailed in a recent post on Balkinization, major media markets are highly concentrated, at levels that are deleterious both to competition and expressive diversity. Copyright is relevant to that untoward consolidation because incumbent media regularly use copyright as a vertical restraint to stifle competition from new media. New media, like today’s YouTube, peer-to-peer file trading networks, Internet radio, and Google News and yesterday’s then-new recording industry, radio, and cable television, often seek to establish themselves in part by distributing incumbent media industries’ copyrighted works. But new media also are vehicles for greater expressive diversity, for breaking incumbent media’s stranglehold on the market and public discourse. So to the extent copyright gives incumbents a proprietary veto over new media’s use of copyrighted expression, copyright law tends to be an obstacle to expressive diversity and thus is rightly seen to impose a burden on speech.
Paul Clement To Resign As Solicitor General in June:
A press release from the Department of Justice announces that "Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008." And now, let the game of "which firm can sign Clement" begin.
"Phobia at the Gates":
In today's Washington Post, Andrew Sullivan has a powerful op-ed about a U.S. immigration policy I didn't know existed: a ban on visitors who are HIV-positive. You really should read the whole thing, but here's just an excerpt:
Twelve countries ban HIV-positive visitors, nonimmigrants and immigrants from their territory: Armenia, Brunei, Iraq, Libya, Moldova, Oman, Qatar, the Russian Federation, Saudi Arabia, South Korea, Sudan and . . . the United States. China recently acted to remove its ban on HIV-positive visitors because it feared embarrassment ahead of the Olympics. But America's ban remains. . . . The ban can be traced to the panic that dominated discussion of the human immunodeficiency virus two decades ago. The ban was the brainchild of Sen. Jesse Helms (who came to regret his initial hostility toward people with HIV and AIDS). President George H.W. Bush sought to drop the ban, but in 1993, after a scare about Haitian refugees, Congress wrote it into law. I remember that year particularly because it was when I, a legal immigrant, became infected. With great lawyers, a rare O visa (granted to individuals in the arts and sciences), a government-granted HIV waiver and thousands of dollars in legal fees, I have managed to stay in the United States. Nonetheless, because I am HIV-positive, I am not eligible to become a permanent resident. Each year I have to leave the country and reapply for an HIV waiver to reenter. I have lived in the United States for almost a quarter-century, have paid taxes, gotten married and built a life here -- but because of HIV, I am always vulnerable to being forced to leave for good. After a while, the stress of such insecurity gnaws away at your family and health. This law has lasted so long because no domestic constituency lobbies for its repeal. Immigrants or visitors with HIV are often too afraid to speak up. The ban itself is also largely unenforceable -- it's impossible to take blood from all those coming to America, hold them until the results come through and then deport those who test positive. Enforcement occurs primarily when immigrants volunteer their HIV status -- as I have -- or apply for permanent residence. The result is not any actual prevention of HIV coming into the United States but discrimination against otherwise legal immigrants who are HIV-positive. People with HIV are no less worthy of being citizens of the United States than anyone else. All we ask is to be able to visit, live and work in America and, for some of us, to realize our dream of becoming Americans -- whether we are HIV-positive or not.
As I said, I didn't know this ban existed; now that I know of it, it sounds absurd. Unless there's some counterargument that I can't think of right now, it seems like a slam dunk that Congress should pass legislation ending the ban.
It's not uncommon for people to mix up epitaph, epithet, epigraph, and epigram; I've seen a brief, for instance, which spoke of "personally abusive epitaphs."
The Seventh Circuit, though, has just handed down an opinion which did indeed involve personally abusive epitaphs (though only mock epitaphs). More importantly, the opinion is a pretty interesting elaboration of First Amendment fighting words doctrine, and quite readable, to boot.
I think de Waal is really interesting and I've learned a lot from him. I especially recommend Chimpanzee Politics and Good Natured.
I briefly discuss de Waal's work (especially his analysis of reciprocal altruism in "Good Natured") in my essay on "Evolutionary Psychology and The Social Science" in the Humane Studies Review a few years ago.
Dann Announcement - Is Resignation Imminent? - MULTIPLE UPDATES
Embattled and scandal-ridden Ohio Attorney General Marc "Dannimal House" Dann will give a statement at noon today amid reports that his resignation is imminent. Stay tuned . . .
UPDATE: At 12:15pm there's still no sign of Dann. Meanwhile, the Dispatch reports on a truly ridiculous rumor:
some of those close to Dann speculated this morning that he would not be stepping down, and instead may launch a legal battle to halt an independent investigation of his office by Inspector General Thomas P. Charles. Dann had not made any announcements to his top advisers as of 10:30.
Some Dann advisers have raised the possibility of Dann raising a constitutional separate of powers challenge, since the inspector general normally does not have the authority to investigate the attorney general's office.
Such a challenge would be absurd, bordering on frivolous. It would also prove that these scandals are preventing the AG's office from doing its job, and validate widespread speculation (reinforced by the daily trickle of new disclosures) that Dann's misdeeds run far deeper than what's been disclosed to date. It's ever-more embarrassing to acknowledge that this clown is a Case Western alum.
BREAKING UPDATE - 12:30pm: Dann's press statement has been canceled and the AG's office is on "lockdown" to prevent the destruction or removal of documents. From the Dispatch:
A press conference by Attorney General Marc Dann will not be held and the 17th floor of the Rhodes Tower where his office is located is apparently on lock-down to protect sensitive documents that may be subject to investigation.
The State Highway Patrol is in the attorney general's offices, checking employee badges and monitoring to see if documents are being removed from the floor, sources told The Dispatch. Troopers were even searching the purses of employees leaving the offices.
Whether the patrol was working at with Inspector General Thomas P. Charles, who promised to launch an investigation today, could not immediately be confirmed.
UPDATE - 1:20pm: A television news report on the Ohio News Network added some new details to the deal Dann sought yesterday. Specifically, the report claims Dann demanded another job and immunity from criminal prosecution in return for his resignation. To their credit, neither Democratic or Republican officeholders would contemplate such a deal.
“I Have Determined that You Pose a Security Threat.”
The Department of Homeland Security (DHS) is sending rather blunt letters rejecting applicants for Transportation Worker Identification Credentials, an ID necessary for employment as a dock worker and in other transportation-related fields where security is a concern. As the NYTreports:
A German graduate student in oceanography at M.I.T. applied to the Transportation Security Administration for a new ID card allowing him to work around ships and docks.
What the student, Wilken-Jon von Appen, received in return was a letter that not only turned him down but added an ominous warning from John M. Busch, a security administration official: “I have determined that you pose a security threat.”
Similar letters have gone to 5,000 applicants across the country who have at least initially been turned down for a Transportation Worker Identification Credential, an ID card meant to guard against acts of terrorism, agency officials said Monday.
The officials also said they were sorry about the language, which they may change in the future, but had no intention of withdrawing letters already sent.
“It’s an unfortunate choice of words in a bureaucratic letter,” said Ellen Howe, a security agency spokeswoman.
Ms. Howe and Maurine Fanguy, who oversees the new ID card program, said that most foreign students did not qualify for the identity cards, but that the letters were not intended to label the recipients as potential terrorists. (Some applicants are also turned down because of criminal records.)
Even if DHS were justified in labeling some foreign students as "security threats," would this be a smart thing to put in a letter of this sort? Suppose Mr. von Appen really did pose a threat of some sort, and was not simply denied the credential because he is a foreigner, why would a security agency want to tip him off? I'm simply baffled by the bureaucratic ineptitude that would lead to the issuance of letters like this.
U.S. authorities have long considered Mohammed al-Qahtani one of the most dangerous alleged terrorists in U.S. custody, a man who could have been the 20th hijacker in the Sept. 11, 2001, plot if he had not been denied entry into the country.
But yesterday, amid concerns about using information obtained during abusive military interrogations, a top Pentagon official removed Qahtani from the military commission case meant to bring justice to those behind the vast Sept. 11 conspiracy. . . .
Prosecutors reserve the right to charge Qahtani again, and the military says it can hold him without trial for the duration of the counterterrorism wars. But his defense lawyers and officials familiar with the case say it is unlikely that Qahtani will face new charges because he was subjected to aggressive Defense Department interrogation techniques -- such as intimidation by dogs, hooding, nudity, long-term isolation and stress positions.
Those techniques were later rescinded because of concerns about their legality. In 2005, an official military investigation concluded that Qahtani's interrogation regimen amounted to abuse.
Officials close to the case said Crawford's office was reluctant to sanction the charges against Qahtani because prosecutors had little evidence against him outside of his own coerced confessions, a point that most certainly would have become a central issue at trial.
The Post story also contains this little tidbit: Former Defense Department official Charles "Cully" Stimson (the subject of these posts) is now at the Heritage Foundation.
Article III Trivia:
What federal court of appeals judge was indicted and then had his conviction affirmed by the court of appeals on which he had earlier sat?
Warshak Update:
Some readers may recall my long string of posts on Warshak v. United States, the Sixth Circuit case from 2007 on how the Fourth Amendment protects e-mail. I occasionally receive e-mails wondering what's happening with the case, and the answer is that the Sixth Circuit heard argument en banc four or five months ago and the case is still pending before the en banc court. Meanwhile, there has been a lot of news relating to the criminal case against Warshak: He was convicted of conspiracy, mail fraud, and money laundering back in February, and now he is out of jail pending sentencing. But the civil and criminal cases are independent, so we're just waiting for the en banc Sixth Circuit to hand down its opinion.
Among other things, [AA for conservatives] would require universities to define who counts as a "conservative" for affirmative action purposes, a task that they aren't likely to do well. Affirmative action for conservatives would also give job candidates an incentive to engage in deception about their views in the hopes of gaining professional advancement. Moreover, conservative professors hired on an affirmative basis despite inferior qualifications would find it difficult to get their ideas taken seriously by colleagues and students. They might therefore be unable to make a meaningful contribution to academic debate - the very reason why we want to promote ideological diversity in hiring to begin with.
One of the above objections may not be applicable to the Colorado plan. It is much less likely that job candidates will engage in deception about their views to gain a two year temporary appointment than to get a permanent tenure-track position. However, the other points certainly are relevant. As I discussed in more detail in this series of posts, lack of ideological diversity in academia is a real problem. However, affirmative action for conservatives is a poor solution.
UPDATE: I do not object on principal to a chair intended for a scholar who studies conservatism, even if he isn't necessarily one himself; such a scholar might well be a liberal, radical, or libertarian. However, the Colorado plan seems clearly designed to ensure that only conservatives are hired for the position. If the goal were to simply study conservatism as a political movement or ideology, that is probably better done within the confines of existing academic disciplines, such as economics, political science, law, and philosophy.
Ideological Affirmative Action at University of Colorado:
The faculty at the University of Colorado at Boulder is apparently quite left-leaning, like the faculty at many academic institutions. University Chancellor G.P. “Bud” Peterson
fears such a strong ideological tilt compromises the institution's commitment to diversity, of which intellectual diversity is an integral part. So the Chancellor has come up with a rather simple (and somewhat simple-minded) solution: Hire a conservative professor. As the Daily Camerareports, Peterson is raising money to create an endowed Chair in "Conservative Thought and Policy."
Mr. Peterson — a Republican who took over as chancellor two years ago — says he would like to bring a new luminary to campus every year or two to fill the chair, for an annual salary of about $200,000. No candidates have been approached, but faculty and administrators have floated big names like Secretary of State Condoleezza Rice, columnist George Will and Philip Zelikow, who chaired the 9/11 Commission.
“Like Margaret Mead among the Samoans, they’re planning to study conservatives. That’s hilarious,” says Mr. Will, dryly adding that “I don’t think it would be a good fit.” Ms. Rice didn’t respond to a request seeking comment, and Mr. Zelikow declined to comment.
On campus, the chancellor’s fund-raising efforts set off a prickly debate. Faculty members demanded to know whether donors would control the appointment. (They won’t.) They asked for a chance to vote on the endowment. (They didn’t get it.) “We don’t ask the faculty if it’s OK if we create a chair in thermodynamics,” Mr. Peterson says — so why give them veto power over conservative thought? After all, he says, “It’s an intellectual pursuit.”
Ken Bickers, who chairs the political science department, says that while he supports the concept of intellectual diversity, he has reservations about the university’s strategy. He worries students will get the impression that the “conservative thought” professor speaks for all conservatives. And he resents the implication that ordinary professors don’t air conservative ideas in class. Registered as unaffiliated with any party, Mr. Bickers says he makes a point of discussing all perspectives, but because he doesn’t stick a political label on each lecture, students “don’t realize, ’Oooh, that was conservative.’”
Mr. Peterson agrees that most professors try to be fair. He adds, “I don’t know that it always happens.”
I am all for efforts to encourage intellectual diversity on campus, but creating token chairs reserved for conservatives is not the way to do it.
Democrats in the Ohio House of Representatives introduced articles of impeachment against state Attorney General Marc Dann this morning. The articles, available here, feature nine counts of "misconduct in office rising to the level of malfeasance, neglect, nonfeasance, gross neglect of duty, improper exercise of authority and gross immorality," including the obstruction of an investigation into sexual harassment complaints in his office and misleading statements to investigators. 42 of 45 House Democrats signed on.
Also this morning, the Columbus Dispatchreportedon a potential FBI investigation of Dann's ties to gambling interests. Such an investigation would come on top of several others already, or soon to be, underway, including an independent review of the AG office's investigation of sexual harassment complaints, an official audit of the AG office's expense reports to investigate the alleged misuse of state property, and an overall investigation by the state's inspector general. Meanwhile, rumors of additional allegations against Dann and his cronies continue to swirl around the state capitol, something I have heard from several sources.
Perhaps because he was feeling the heat, Dann allegedly offered to resign if state legislators did not authorize an immediate IG investigation of his office. According to the Dispatch:
State Rep. Robert F. Hagan said Michael Harshman, Dann’s attorney, told him to offer Dann’s resignation this afternoon “within the hour” if the Senate removed an emergency clause in a bill giving the state inspector general the power to investigate the scandal.
Taking out the clause would have the bill to take effect in 90 days instead of immediately.
But Hagan, a Youngstown-area Democrat, said Republican Senate President Bill M. Harris refused, and the bill was passed by both the House and Senate today with the emergency clause included. . . .
In response to media reports that his resignation was imminent, Dann issued a terse statement saying he has not resigned and there would be no further announcements today.
Sources said Dann told a number of legislators that an investigation by Inspector General Thomas P. Charles “would cause all sorts of problems” for him and he offered to leave office if the bill was scotched.
Despite Dann’s request, the House and Senate today approved the bill directing Charles to investigate and sent it to Strickland, who signed it tonight.
Dann has completely given up hope on his political career and instead might be trying to avoid more serious allegations from coming to light that would have more serious consequences. He must have something juicy to hide that he feels will be exposed by the IG in an investigation.
WEDNESDAY MORNING UPDATE: From this AM's Dispatch: "Sources close to Dann say he was caught off guard by the surprisingly rapid action from by the Democrats and is trying desperately to leave office with some dignity intact." Um, it's a little late for that.
So if you forget what "womanizer" actually means, you might think that it would mean "a surgeon who does male-to-female sex change operations." That, after all, is a common meaning of the "-ize" suffix -- to "Xize" is to make something into X, literally or figuratively, for instance "demonize," "humanize," "personalize," and the like. Nor is there a rival common meaning of "-ize" that explains "womanizer." In fact, one definition of "womanize" is "to make effeminate," but "womanizer" is something quite different.
"Inflammable" famously comes close to this. Still, there is a meaning of prefix "in-" that would yield the standard definition of "inflame" and hence "inflammable." It therefore isn't a pure womanizer word.
My question: What other words fit within the same (admittedly imprecisely defined) category as "womanizer"?
My law school colleague Amos Guiora will be testifying Thursday before the U.S. House Committee on Homeland Security’s Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment. The hearing is titled “The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks.”
Amos' blog has a link to the webcast of the hearing as well as his testimony. Here are some highlights:
To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.
It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.
The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.
The idea of public-private partnerships in this area is an interesting one that I hope Congress will carefully consider.
Tim Sandefur on California Proposition 99 - the Deceptive Eminent Domain "Reform" Initiative:
Tim Sandefur of the Pacific Legal Foundation has an excellent post detailing some of the dangers of Proposition 99 - the deceptive California eminent domain "reform" initiative that purports to protect property rights against takings but actually undermines them. Prop 99 is sponsored by the California League of Cities and other government organizations that seek to retain the broadest possible condemnation authority for themselves.
I wrote about some of Proposition 99's other flaws here. The great danger posed by Proposition 99 is that nonexpert voters will understandably assume that it really does protect property owners, without realizing that it will actually undermine their rights by 1) offering no real protection and 2) blocking implementation of Proposition 98, a ballot proposal that really would give property owners protection against the kinds of takings authorized by the Supreme Court Kelo v. City of New London. Even if Prop 98 and Prop 99 both pass, Section 9 of Prop 99 would negate Prop 98 so long as Prop 99 gets more votes than 98 does. Understandably, even relatively well-informed voters could easily be fooled by Prop 99.
I have written an entire article on the ways in which state governments have used political ignorance to block meaningful eminent domain reform, as well as many other works on ignorance more generally. And I have to give credit to the sponsors of Prop 99 where credit is due: This is the most skillfull attempt to manipulate voter ignorance on the eminent domain issue that I have ever seen. In most cases, efforts to exploit political ignorance in this field simply take the form of passing off cosmetic measures that don't really constrain takings as effective ones that do. They portray efforts to do nothing as efforts to do something. Prop 99 goes one step further. It actually dresses up a proposal that would undermine property rights as an effort to protect them.
I've heard a good deal of talk about rising food prices, but the data I've seen suggests that total food costs as a share of disposable income (i.e., after-tax income) are not substantially rising in the U.S.
The Consumer Price Index for food increased 4.0% in 2007, but total disposable personal income increased 5.7% in 2006, for a per capita increase of roughly 4.5%, taking into account the roughly 1.1% population growth rate. (Unless I'm mistaken, all these numbers are in nominal dollars, and thus are directly comparable.)
So the 2007 food price increase seems likely not to have changed the share of disposable income that goes to food. The likely 2008 increase, 4% to 5%, will likely have the same effect. Some press accounts point to large increases in prices for certain foods, such as milk and eggs. But the USDA data suggests that the overall increase -- which is what we should care about, unless we're in an unusually custard-consuming household -- is much more modest.
But let's even say that the prices increase in 2008 by 6%, and per capita disposable income increases only by 3%, so that the share of disposable income that goes to food rises by 3%. That would be an increase from 9.9% of disposable income (the 2006 share that's likely to remain stable for 2007) to 10.2%. For some perspective, here are the numbers on U.S. food spending as a fraction of disposable personal income in the past:
Year
Food spending as share of disposable income
1929
23.4%
1939
21.3%
1949
22.1%
1959
17.8%
1969
13.7%
1979
13.4%
1989
10.9%
1999
10.2%
2000
9.9%
2001
9.9%
2002
9.8%
2003
9.8%
2004
9.7%
2005
9.8%
2006
9.9%
So an increase from 9.9% to 10.2% puts us at the 1999 level, which as I recall was quite bearable. Not a major change, it seems to me -- or is there something that I'm missing here?
it turns out, for skill/et counter/intuitions (slashes added to avoid breaking the google hack; commenters, please act accordingly). My guess is that blogs are particularly likely to be googlewhacks, because they tend to aggregate generally unrelated topics on one page. Congratulations to Kristina Ackerman.
Seattle School District Eliminates "Office of Equity, Race and Learning Support":
Whether this will have any effect on policy, or even the District's pronouncements, is hard to tell. Still, it seemed worth noting, especially given my comments two years ago on one aspect of the Office's work:
Seattle Public Schools' Web Site Says Individualism is a Form of "Cultural Racism":
From "Definitions of Racism":
Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as “other”, different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.
Also included: "Defining one form of English as standard," and "identifying only Whites as great writers or composers." I should say that assuming that only Whites can be great writers or composers is of course indeed racism; but providing a list of the greatest composers and writers that consists only of whites may be perfectly legitimate, depending on your criteria (which could be entirely fair, though not indisputable, criteria) of greatness.
(The definition was taken down following complaints that were seemingly spurred by media coverage of the Web page.) Thanks to Rick Thiel for the pointer.
Seen on the song list of this CD set: "The march of racketeers" (plus "The rackets are always at the post").
Of course, this is another example of the translator's false friends. In Russian, "rockets" (as in "the rockets' red glare") are "rakety," and "rocketeer," in the sense of a soldier in charge of firing rockets, is "raketchik." (No, "-chik" is not always a diminutive; don't let "boychik" fool you.) So a poor translator of the song list -- the disk set is "Patriotic Songs," by the Alexandrov Song and Dance Ensemble of the Soviet Army -- translates "raketchikov" as "of racketeers." How embarazada.
The paradox referenced in my book’s title is that copyright serves both as an “engine of free expression” and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse.
Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We can’t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn’t extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work.
Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that’s why I wrote a whole book about the copyright-free speech paradox!)
I’ll consider the “engine of free expression” side first.
Copyright’s economic incentive for the creation and dissemination of original expression is just one way that copyright promotes speech. Copyright’s effect is qualitative, not just quantitative. It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence.
Moreover, copyright does not further free speech merely by providing pecuniary incentives and support. It also symbolically reinforces certain values and understandings that underlie our commitment to free speech. By encouraging authors, copyright gives the law’s imprimatur to the social and political importance of individuals’ new original contributions to public discourse.
A basic understanding that copyright promotes what we today think of as “First Amendment values” has been central to copyright law since the Founding. The Constitution gives Congress the authority to enact a copyright law “To Promote the Progress of Science,” meaning learning in general. And the Framers were animated by a belief that copyright’s support for the diffusion of knowledge was essential to individual liberty democratic government. In his address in support of the first copyright law, the Act of 1790, President George Washington declaimed that copyright’s promotion of learning would help to secure a “free constitution … [b]y convincing those who are entrusted with public administration that every valuable end of government is best answered by the enlightened confidence of the public.”
It is for at least some of those reasons, that in 1985 the Supreme Court denominated copyright as “the engine of free expression.” But in the digital age does copyright law still serve as the engine of free expression? The Internet features a rich cacophony of original expression, much of which is distributed without any claim of copyright by its author (or at least without any effort to use copyright to prevent copying). Many Internet speakers are volunteers, happy to converse and express their views without any expectation of monetary remuneration. Others make their creative expression available for free to enhance their reputation or sell related products. Bottom line: If Congress repealed the Copyright Act tomorrow, we would still have more speech that we could possibly absorb in a lifetime available on the Internet.
So the claim that copyright is “engine of free expression” must rest on an argument about copyright’s incremental free speech benefits. If we are to believe that copyright continues to be necessary to promote free speech, we must posit that (1) the copyright incentive generates the creation and dissemination of original expression over and above the rich array of speech that would be available even without copyright and (2) this additional copyright-incented expression has independent First Amendment value.
As I argue in my book, copyright does have this incremental benefit. Many works require a material commitment of time and money to create. Examples include numerous full-length motion pictures, documentaries, television programs, books, products of investigative journalism, paintings, musical compositions, and highly orchestrated sound recordings constitute such sustained works of authorship. It is generally far too expensive and time-consuming to create such works, let alone create with the considerable skill, care, and high quality that the best of such works evince, to rely on volunteer authors. Nor are alternative, noncopyright business models necessarily more desirable than copyright. For example, we might not want our cultural expression to be populated with product placement advertising or devalued by treating it as a mere give-away for selling other products.
Many of these types of works have considerable First Amendment value. And, as I wrote in yesterday’s post in relation to the press, copyright’s role in support a sector of media that is both financially robust and independent from dependency on government subsidy also remains of great importance in the digital age.
So in sum, while copyright is no longer THE engine of free expression (if it ever was the sole engine), it remains a vital underwriter of free speech.
My take on the Nadia Abu el Haj affair at Columbia, after much thought, differs both from that of Abu el Haj's defenders and those of her various critics.
I think that it was shameful of Barnard to retain her as a tenured faculty member, but that her political views, as well as those of her opponents, are not especially relevant to the issue.
My disquiet arises because I think Abu el Haj represents a pseudo-discipline that has gained some traction in universities despite its serious methodological and philosophical defects. The area is usually called "science studies" and its proponents can be found in anthropology and sociology departments, as well as in literary studies.
Abu el Haj tries to engage with archaeology on the basis of the assumptions and theories that are regnant in "science studies", as her book plainly concedes.
These ideas are at the least heavily tinctured with what, for want of a better term, is usually called "postmodernism." This incorporates the attitude that knowledge claims are, perforce, political claims, that "objective knowledge" is an oxymoron, and that modern science, in particular, is a repressive ideological edifice designed to bolster the hegemony of western capitalist patriarchal societies, not least by demeaning and displacing the "alternative ways of knowing" that are embedded in non-western
cultures or are simply more appropriate to marginalized sub-populations (women for instance!)
This point of view is strongly conveyed by the science-studies sages from whom Abu el Haj tries to derive her theoretical authority, for instance, Michel Foucault, David Bloor, Bruno Latour, Karen Knorr-Cetina, Helen Longino, Steven Shapin, Simon Schaffer, Andrew
Pickering.
The unifying theme of all these theorists is that the manifest content of scientific discoveries is not determined by the relevant physical facts of the universe but is "socially constructed" by some kind of murky alchemy that synthesizes the social and political interests of scientists into scientific theories.
Almost all scientists, as well as philosophers of science in the traditional sense, find this overarching theory of the nature of science to be highly unconvincing, to say the least. I cite some well-known critiques, to some of which I have contributed: "Levitt
and Gross, "Higher Superstition," Boghossian, "The Fear of Knowledge', Haack, "Defending Science--Within Reason", Sokal and Bricmont, "Fashionable Nonsense", Koertge (ed.), "A House Built on Sand", and Gross, Levitt and Lewis (ed.), "The Flight from Science
and Reason."
These critiques, however, have not dampened the enthusiasm of some would-be scholars, usually with blatant political motivations, to dedicate their academic careers to "science studies" in some context or other.
One clear advantage to this methodology, obviously, is that it gives its practitioners leave to dismiss scientific findings they find discomfiting without the necessity of developing significant scientific arguments against them. If science is a phantom
constructed by a cabal with social interests opposed to yours, you have only to utter a few magic words from the science-studies canon and, poof!, the offending ideas go up in smoke. One can see this at work in the supposed findings of many authors, from Helen Longino, who doesn't like the fact that exposure to hormones in utero can affect the behavioral propensities of young children, to Vine Deloria, the American Indian activist who simply despises western science root and branch and asserts that it has no
authority to dispute Native American lore.
For me, the most damning fact about this school of thought is its cavalier attitude to the work of earlier philosophers of science, who are tossed aside with little more than a sneer. I find, much to my astonishment, that the term "positivism" (i.e., the positivism of E, Mach and, later on, the Wienerkreiss logical positivists such as Schlick, Carnap, and Ayer) is utterly misunderstood in science-studies circles, which use it as a
generalized term meaning, more or less, respect for the empirical findings of science.
"Positivism" has a very specific meaning, of which even freshman philosophy majors are largely aware, but this understanding is barred to proponents of science studies, who want to use the term as a generalized pejorative. Abu el Haj provides a splendid example of
this kind of ignorance and miseducation at work. I want to emphasize that on this ground alone, she disqualifies herself from being considered a serious scholar of the nature of science.
I don't know enough about "science studies" to endorse Prof. Levitt's take, though to the extent I have encountered sociology of science in my work on scientific evidence I have not, to say the least, been impressed overall.
But Prof. Levitt's critique raises a broader issue. There are lots of methodologies and modes of thought that are widely acceptable within at least some circles of academia, but would strike an uninitiated outside observer as nonsensical, academically dishonest, or otherwise discreditable.
For the most part, the outside world ignores the academics who indulge in these flights of fancy, leaving them to their own echo chambers. However, when a group with an interest in a particular issue--for example, pro-Israel activists--encounter academics who are doing such work, they denounce it as obviously biased and unworthy of the academy. And they're right! The other side responds, this work is perfectly respectable within the discipline in question, and you're only complaining because your ox is being gored. And they're also right!
"Rather Elitist" To Prefer Data Over Intuition and Casual Observation?
The House of Representatives Committee on Oversight and Government Reform held a hearing "Assessing the Evidence of Domestic Abstinence-Only [Sex Education] Programs," at which various public health experts opined that scientific studies don't show any benefit to such abstinence programs. (See here for the witness statements.) Rep. Duncan (R-Tenn.) responded, among other things, that polls show that parents support abstinence-only education, and that
The Zogby poll that's been mentioned showed by a more than 2-1 margin that parents ... prefer the abstinence approach, and it seems rather elitist to me for people who maybe have degrees in this field to feel that they, because they've studied it, somehow know better than the parents what is best for ... I still think parents know best what is best for their children.
People thinking that because they've studied a subject — based, they claim, on attempts to actually measure the effectiveness of particular educational programs — they know better than those who just have intuition, casual observation, and anecdote? How elitist! Next thing you know, doctors will think that because they've studied the effectiveness of various treatments for childhood illnesses, they know better than the parents what is best for treating those illnesses. I mean, why not just rely on parents' intuitions about what medical approaches (or educational programs) work? After all, they are parents who love their children, and you don't need a fancy-pants M.D. to do that. How could parents' intuitions about what will actually work in keeping children safe possibly be wrong?
Look, if you want to challenge the reliability of various studies, by all means please do that. Many such studies are indeed junk science; and education is an area where good studies are notoriously hard to conduct. For all I know, maybe the studies that the witnesses are referring to are unsound. Likewise, if you want to make an argument based on pure morality or democratic theory about what should be done and shouldn't, that's fine, if you make clear that you're focused on what's moral or democratic, rather than on what actually helps children.
But if you're going to talk about what's actually "best for ... children" — which is to say what's actually effective in preventing harmful behavior — then don't claim that parents have some sort of innate insight into a process that they've never systematically studied, and as to which they have at best a couple of observations (and far from perfect ones, since they may not know that much about their children's sex lives). It's not that parents are less inherently "elite" than public health Ph.D.s. It's just that, on the question of what sorts of educational programs work in this area, only people who have indeed studied the subject in a systematic way are likely to have a trustworthy opinion on what will actually work.
UPDATE: I should mention something that I had thought was implicit, but that on reflection I should make explicit: Even if parents may know better what programs work for their particular children, given their knowledge of their children (which isn't necessarily so) — or even if parents have some a moral or political theory entitlement to opt out of certain such programs (which may well be so) — the question is what education programs the government should fund for children at large. Even if ten years from now my special knowledge of my boys' personalities and behavior will give me a better sense of what sex education will work for them (I hope it will, but I'm not sure), it won't give me a particularly good sense of what sex education will work for children generally.
Australian science fiction writer John Birmingham has an interesting discussion of the possibility that we might all end up living in a holodeck forever (HT: Instapundit). If advancing technology ever allows us to create a virtual reality environment that truly felt "real" (as Star Trek's fictional Holodeck does), it would be easy to program experiences that are far more stimulating and pleasurable than anything we could get in the material world. Would the vast majority of humanity then choose to spend all their time in the holodeck? I don't know. But it's an interesting possibility.
The issue is not a new one. Political philosopher Robert Nozick raised a similar question back in 1974, when he considered the possibility of an "experience machine" - effectively the same thing as the holodeck, except that the participants might not know that they weren't in the "real" world. Nozick argued that living your life in an experience machine would be undesirable. But I suspect that a lot of people won't be deterred by his and other arguments against it.
The issue is not immediately urgent. Despite the eager hopes of Trekkies and others, we don't yet have a working holodeck. But advances in virtual reality technology make it a more pressing concern than it was back when Nozick wrote about it. On balance, I tend to think that there is enough diversity of preferences that we won't ever have Birmingham's nightmare scenario under which we all "end up Matrixing ourselves in very short order." Some people would stay out because they are achievement-oriented, and others for ethical or religious reasons. But it's hard to say for sure.
I'd always thought that "lame" as in "lame argument" or "lame excuse" was relatively modern youth slang. Then I ran across it in a 19th-century source, and so decided to check the OED. It turns out that the definition of "[m]aimed, halting; imperfect or defective, unsatisfactory as wanting a part or parts," "[s]aid esp[ecially] of an argument, excuse, account, narrative, or the like" dates back at least to Chaucer's Troilus and Cressida: "blame me not if any word [of my work] be lame." Then there's Shakespeare, in Othello, speaking of a "most lame and impotent conclusion." Most lame, dude! And Swift, in Gulliver's Travels, "The theory of comets, which at present is very lame and defective."
On reflection, it shouldn't be surprising — why shouldn't earlier centuries think of the same figurative usages that modern Americans use? Still, I didn't expect it.
Fifth Circuit Finds Victims' Rights Violated ... But No Remedy
I have been working on a pro bono crime victims' rights case, involving the Texas City oil refinery disaster. Criminal negligence by BP Products led to an explosion that killed 15 workers and injured more than 170. The Justice Department and BP reached a plea agreement under which the company would plead to a felony and pay $50 million. The victims of the crime have objected to the plea, arguing that the fine was inadequate given the harm frmo the crime and that the plea failed to provide sufficient assurance for the future safety of workers at the refinery.
The Fifth Circuit has now ruled on the victims appeal (available here), finding that the crime victims' rights were violated by the U.S. Attorney’s Office when it reached a plea bargain without conferring with the victims. The Fifth Circuit, however, refused to block the plea deal, remanding to the district court for further proceedings.
In its decision, the Fifth Circuit found that the U.S. Attorney’s Office had violated the Crime Victims Rights Act (CVRA) in reaching the agreement. In October 2007, the U.S. Attorney’s Office had obtained an ex parte order from the district court relieving the Office of any need to notify the victims before reaching the plea. The Fifth Circuit held that “it was contrary to the provisions of the CVRA for the [district] court to permit and employ the ex parte proceedings that have taken place – proceedings that have no precedent, as far as we can determine.” Instead, the Fifth Circuit stated that the U.S. Attorney’s Office “should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain.”
The Fifth Circuit concluded that “the unfortunate fact is that the plea agreement was reached without the victims’ being able to participate by conferring in advance.” However, the Fifth Circuit remanded the case to the district court for further proceedings in which the district court “will fully consider the victims’ objections [to the proposed plea bargain] and concerns in deciding whether the plea agreement should be accepted.”
Along with the other attorneys working on the case, I will filing a petition for rehearing en banc with the Fifth Circuit in light of "circuit split" that the decision deepens. The Fifth Circuit concluded that it did not have to give the victims any relief — even though their rights were violated — because the CVRA provides for relief by way of a mandamus petition. The Fifth Circuit, citing a Tenth Circuit decision, held that mandamus petitions are subject to review only for "clear and indisputable" errors. Even then, mandamus relief is purely prudential, concluded the Fifth Circuit.
But the
Second and Ninth Circuits have reached the opposite conclusion — that crime victims are entitled to ordinary appellate protection of their rights.
The Second and Ninth Circuit conclusions are obviously correct if one looks at the legislative history of the CVRA. One of the two co-sponsors of the CVRA stated the law would create
“a new use of a very old procedure, the writ of mandamus. This provision will establish a procedure where a crime victim can, in essence, immediately appeal a denial of their rights by a trial court to the court of appeals . . . . Simply put, the mandamus procedure allows an appellate court to take timely action to ensure that the trial court follows the rule of law set out in this statute.”
150 CONG. REC. S4262 (statement of Sen. Feinstein) (emphases added). Rejecting the cornerstone of the panel’s holding that the decision whether to grant relief for a victim is prudential one, the other of the CVRA’s two co-sponsors stated that:
"[W]hile mandamus is generally discretionary, this provision [18 U.S.C. § 3771(d)(3)] means that courts must review these cases. Appellate review of denials of victims’ rights is just as important as the initial assertion of a victim’s right. This provision ensures review and encourages courts to broadly defend the victims' rights. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country’s appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim’s rights.
150 CONG. REC. at S10912 (statement of Sen. Kyl) (emphases added).
Surprisingly, the panel of the Fifth Circuit did not discuss this legislative history in deciding that it did not have give the victims any relief. Hopefully the full Fifth Circuit will see things differently on the petition for rehearing. Crime victims deserve the same protection in the appellate courts as criminal defendants and other litigants receive.
Bilski, Business Method Patents, and the Problem of the Second Step:
Last week the en banc Federal Circuit heard argument in Ex Parte Bilski, an important case on the patentability of so-called "business method" patents. You can read the many briefs in the case here, and find links to the oral argument here.
Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law's one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.
I haven't dabbled in patent law since writing that essay, but I figured it might be of possible interest to those following the Bilski case.
Knock-and-Announce Violations in Alaska:
The Alaska Court of Appeals handed down an interesting opinion on remedies for knock-and-announce violations last week in Berumen v. Alaska. The knock-and-announce rule requires officers to knock and announce their presence when executing a warrant. The Alaska court held that suppression is the proper remedy for knock-and-announce violations under the Alaska knock-and-announce statute even though the Fourth Amendment does not impose suppression under Hudson v. Michigan.
Here are the facts of the case. Officers came to Berumen's hotel room to serve an arrest warrant on him. They knocked on the door for about 20 seconds, and when no one answered, they used a hotel pass key to open the door. The officers rushed inside, announcing their identity as police officers as they entered. Inside the room they found four men and a stash of marijuana and cocaine out in the open. The officers arrested Berumen, who was one of the men, and they used the marijuana and cocaine against him at trial.
In this appeal, Berumen argued that the cocaine and marijunana should have been suppressed because the officers violated the Alaska state knock and announce statute. The Alaska statute states:
A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after the officer has announced the authority and purpose of the entry.
First, the Court concluded that the officers had violated the statute:
[A]lthough the officers identified themselves as police officers, they never announced the authority for, and the purpose of, their entry into Berumen’s hotel room. Moreover, the officers never requested or demanded entry into the room. Because of this, no one ever refused them admittance, nor could the officers have reasonably interpreted the lack of response from inside the hotel room as a tacit refusal of admittance.
The Court then ruled that the proper remedy for the violation was suppression based on an earlier state decision called Harker v. State, 637 P.2d 716 (Alaska App. 1981). Harker apparently required the court to consider (1) whether the statutory requirement or restriction is “clear and widely known”; (2) whether the statute is primarily “designed to protect the personal rights” of individual citizens, as opposed to being intended more “for the benefit of the people as a whole”; (3) whether admission of evidence obtained in contravention of the statute would require the court to “condone ‘dirty business’”; and (4) whether it appears that the police have engaged in “widespread or repeated violations” of the statute.
Of particular interest is the Court's discussion of the fourth factor, whether the police have appeared in widespread or repeated violations of the statute.
The fact that there are several Alaska appellate decisions that discuss the meaning and application of AS 12.25.100 suggests that this issue comes up more than occasionally in criminal litigation. And yet, despite this, it appears that police officers may not be paying sufficient attention to this statute. During the evidentiary hearing in this case, one of the officers could not remember that one of the reasons for the “knock and announce” statute is to protect citizens’ privacy, and a second officer testified that he had no idea why the officers failed to abide by the requirements of the statute when they entered Berumen’s hotel room. Given this history and this record, we cannot ignore the possibility that there may be widespread or repeated violations of the statute.
The analysis of the last factor seems pretty speculative, but Alaska judges would have a much better sense than I do of whether Alaska police follow the Alaska statute.
If you're interested in whether the analogous federal statute should be interpreted the same way, see my long blog post on the topic from 2006 over at my now-defunct solo blog. Oh, and if you read that post and you're interested in knowing how the bet would have gone with Professor Moran, so far I would have lost, as no circuit has adopted my position. On the other hand, one Sixth Circuit decision stated in dicta that "there is room for disagreement" on the issue and stated that the issue was "murky," generously citing my blog post along the way. See United States v. Ferguson, 252 Fed.Appx. 714 (6th Cir. 2007).
Here. "Don't moan. I'm not going to "pass the wisdom of one generation down to the next." I'm a member of the 1960s generation. We didn't have any wisdom."
Big-Name Universities That Don't Have Law Schools:
It recently occurred to me that there are several big-name universities that don't have law schools, even though a law school established at any of those institutions would probably do well. Princeton arguably heads this list, along with Brown, Johns Hopkins, Rice, and Tufts. Brandeis University also doesn't have a law school (ironically, for a prominent university named after a Supreme Court justice).
Why these universities haven't established law schools is a bit of a mystery (at least to me). Law schools tend to bring in net revenue for the university. This is even more likely to be true at a big-name institution that can quickly attract good faculty and students. If Princeton were to establish a law school tommorrow, appoint a credible dean, and provide adequate initial financial backing, they could very quickly turn it into a highly successful (and profitable) enterprise. Many good students would come just because of the Princeton name, and most outstanding scholars who are not already at top 20 or top 30 institutions might well be willing to move to Princeton if asked.
Why have these schools in effect left money lying on the table? I don't know for sure (and the reasons may differ from school to school). But here are a few conjectures:
This probably is a factor, as in most large bureaucracies. Still, many universities (including George Mason in 1979) have established new law schools, so one would have to explain why Princeton, Brown, et al., have more inertia than other schools.
3. The inefficiency of non-profit institutions.
If a for-profit firm increases its revenue, the stockholders will benefit directly. This gives them an incentive to exploit new profit opportunities to the hilt. In a nonprofit such as a university, by contrast, there are no residual claimants to additional revenue. If the university establishes a new law school and increases its revenue as a result, the administration won't get a pay raise or otherwise directly benefit. That reduces their incentive to exploit opportunities to increase revenue, and may account for the failure to create what might well be highly profitable law schools. That said, universities surely do take all sorts of actions to increase revenue streams. And some have even established law schools for this purpose. So this factor too can't explain why several specific institutions have failed to establish law schools even though most of their peers have.
Ultimately, I suspect that the initial failure to establish a law school may have resulted from chance factors that were then reinforced by a combination of 2 and 3 above. If you know more about the real reasons why these big-name universities have no law schools, feel free to comment.
UPDATE: Various commenters suggest that these universities choose not to have a law school because of their desire to focus on undergraduate education. That may indeed be the right explanation, though several of these institutions (including Johns Hopkins, Tufts, and Rice) have other professional schools on campus. But it doesn't strike me as a very compelling reason not to establish a law school. If the law school were to drain resources away form undergrad education, there might indeed be a conflict between the two. In fact, however, a law school is likely to bring in net revenue that could be used to improve undergraduate education. Moreover, some law school professors (especially at elite schools) teach courses that undergraduates might be interested in taking, as sometimes happened at Yale, when I was a law student there.
Even if a law school adds resources to undergrad education instead of draining them, it's possible that its presence could detract from undergraduate education in some other, more subtle way. But it's hard for me to see how. If Yale Law School were closed down tommorrow, would undergraduate education at Yale improve? Are undergraduates at Yale currently worse off than at Princeton in some way traceable to the fact that Yale has a law school and Princeton doesn't? Possibly. But I remain skeptical. I'm not arguing that Princeton or any other institution that doesn't yet have a law school should necessarily create one. But the undergraduate education rationale for not doing so seems dubious.
I greatly appreciate the invitation to guest blog on Volokh Conspiracy about my new book, Copyright's Paradox.
A central theme of my book is that copyright law is no less a part of national media and information policy than are the Telecommunications Act and the First Amendment. In particular copyright serves as a major battleground between digital and traditional media.
Media lawsuits against Google are a prime example. Newspapers have sued the multi-billion dollar upstart over Google News, book publishers have sued over Google Book Search, movie studios over Google’s YouTube, and adult magazines over Google Image Search. The outcomes will profoundly impact the shape of the media, how we receive and impart information, news, and opinion, and what types of speech are most salient to the public. Depending on how copyright law is configured, the new media may supplant the old or the traditional incumbents may stifle the new.
I will expand upon copyright's role in a later post. Here I want to focus on newspapers and ask whether we should care about their demise. In a recent article in The New Yorker, Eric Alterman surveys the evidence and concludes that "it no longer requires a dystopic imagination to wonder who will have the dubious distinction of publishing America's last genuine newspaper." As he demonstrates, a primary cause for newspapers' rapid decline in advertising, readers, market value, and, indeed, sense of mission is the Internet.
The Internet makes the daily newspaper look slow and unresponsive. Young people in particular (only 19 percent of Americans under 34 even claim to look at a daily newspaper) prefer to surf the Web and log in to social network sites for up-to-date, easily digestible news bites. Even aside from lost readership, the Internet erodes newspaper advertising revenue. Craigslist has wiped out classified advertising. Online news aggregators, like Google News, usurp much other advertising. And for newspapers, moving online is no panacea; newspaper Web sites benefit from the growth of online advertising, but not nearly enough to replace revenue losses from circulation and print ads.
Not all bemoan newspapers' decline. Many news bloggers and other self-styled online journalists trumpet their superiority over the mass media. Arianna Huffington, co-founder of the Huffington Post "Internet Newspaper," has been particularly relentless in attacking the mainstream news media for what Huffington characterizes as the media’s purported prolonged servile acceptance of the Bush Administration's invasion of Iraq and domestic war on terror. And in his seminal book, The Wealth of Networks, Yochai Benkler argues that peer reporting from a multitude of online speakers does better than traditional news media both at bringing information and opinion to the fore and engendering an activist, autonomous citizenry.
Peer reporting and opinion no doubt form an invaluable component of public discourse, both in and of themselves and for calling traditional news media to brook for its failings. But so-called “news blogs” are valuable primarily as media gadflies and commentators. They do not and cannot substitute for institutional news media in performing the still vital Fourth Estate function.
The blogosphere is largely parasitic on media coverage. Blogs from the Huffington Post on down engage in little original reporting and link to stories from the mainstream press far more than to other blogs. Online opinion also appears to be highly fractured and balkanized. Conservative and liberal bloggers, for example, rarely link to blogs across the political divide -– and even when they do, views from opposing camps can generally be found only by following a link; unlike newspaper op-eds and letters to the editor, they are not interspersed side by side.
Bloggers also lack the financial resources for investigative reporting and fact-checking that mass media enjoy. Even the relatively well-heeled, The Huffington Post removes erroneous blog posts only after the fact if it receives a round of reader complaints. It does not commit to reviewing posts before posting (except perhaps for the posts on its home page). There are exceptions, like the largely user-contribution-financed Talking Points Memo, but I don't see these as a scalable model to take the place of the institutional press.
I wholeheartedly (but sadly) agree with media critics that the press miserably fails to live up to its fourth estate ideal. But the judgment we must make in evaluating flawed instititions is always "As compared to what?" Even with its flaws, the institutional press has the ability to serve — and aspires to serve — fourth estate functions that individual bloggers do not and cannot.
So while bloggers make an invaluable contribution to public discourse, their contribution is different than that of the institutional press. I think we need both.
FTC Workshop on "Consumer Information and the Mortgage Market":
The FTC is hosting a one-day Workshop on "Consumer Information and the Mortgage Market" on May 29, 2008. The program looks great and the list of participants is outstanding. Full info is here.
Guest-blogger Kathy G. at Crooked Timber, protesting Washington University's plan to award an honorary degree to Phyllis Schlafly, manages to express a certain academic mindset (all emphases added):
Nor do I believe that conservatives should never receive honorary degrees. There are conservative scholars who do work that is respected within academia—many economists, for example—and they would not be inappropriate candidates for such an honor. Nor would I have a problem with conservative pundits, so long as they’re sane and genuinely distinguished (which these days admittedly narrows the field to practically zero), such as the late William F. Buckley. I’ll even grudgingly accept the reality that conservative Republican elder statesmen are regularly awarded these things. Though even here there are limits—while personally I wouldn’t protest the awarding of a degree to George H.W. Bush, even though I find him pretty hateful, far-right lunatics like Cheney, Dubya, and Jesse Helms should be entirely out of bounds.... as much as conservatives may whine and scream to the contrary, liberalism and conservatism are not moral equivalents. Because, on the one side you have the thinkers and activists who have advanced freedom, social justice, and human rights, and on the other, you have those who have attempted to thwart all those things.
Not that this mindset is limited to academics, of course, nor, do most academics have such juvenile ideas regarding politics, but it's sufficiently common in academia that it's little wonder that bright young conservatives will think twice before going into the academy and potentially putting their career fates into the hands of those who think that they are presumptively "hateful," "lunatics," who are not "sane" and are attempting to thwart all that is good and just.
An interesting article that discusses my GMU Economics Department Pete Leeson's forthcoming book, "The Invisible Hook: The Hidden Economics of Pirates."
Update:
Commenter UW2L (who obviously is supposed to be studying for exams), poses an an important question about pirate spelling.
The State of Missouri may adopt a state constitutional amendment requiring proof of citizenship for voting. As the New York Timesreports, the stated purpose of this requirement is to prevent voting by illegal immigrants and other non-citizens.
Voting experts say the Missouri amendment represents the next logical step for those who have supported stronger voter ID requirements and the next battleground in how elections are conducted. Similar measures requiring proof of citizenship are being considered in at least 19 state legislatures. Bills in Florida, Kansas, Oklahoma and South Carolina have strong support. But only in Missouri does the requirement have a chance of taking effect before the presidential election.
In Arizona, the only state that requires proof of citizenship to register to vote, more than 38,000 voter registration applications have been thrown out since the state adopted its measure in 2004. . . . More than 70 percent of those registrations came from people who stated under oath that they were born in the United States, the data showed.
Already, 25 states, including Missouri, require some form of identification at the polls. Seven of those states require or can request photo ID. More states may soon decide to require photo ID now that the Supreme Court has upheld the practice. Democrats have already criticized these requirements as implicitly intended to keep lower-income voters from the polls, and are likely to fight even more fiercely now that the requirements are expanding to include immigration status. . . .
Measures requiring proof of citizenship raise the bar higher because they offer fewer options for documentation. In most cases, aspiring voters would have to produce an original birth certificate, naturalization papers or a passport. Arizona and Missouri, along with some other states, now show whether a driver is a citizen on the face of a driver’s license, and within a few years all states will be required by the federal government to restrict licenses to legal residents.
Critics say that when this level of documentation is applied to voting, it becomes more difficult for the poor, disabled, elderly and minorities to participate in the political process. . . .
Supporters of the measures cite growing concerns that illegal immigrants will try to vote. They say proof of citizenship measures are an important way to improve the accuracy of registration rolls and the overall voter confidence in the process. . . .
From October 2002 to September 2005, the Justice Department indicted 40 voters for registration fraud or illegal voting, 21 of whom were noncitizens, according to department records.
Welcome to the next round of debate and litigation over voter identification.
Today's WSJreports on an Energy Information Administration study detailing current federal energy subsidies.
The agency reports that the total taxpayer bill was $16.6 billion in direct subsidies, tax breaks, loan guarantees and the like. That's double in real dollars from eight years earlier, as you'd expect given all the money Congress is throwing at "renewables." Even more subsidies are set to pass this year.
An even better way to tell the story is by how much taxpayer money is dispensed per unit of energy, so the costs are standardized. For electricity generation, the EIA concludes that solar energy is subsidized to the tune of $24.34 per megawatt hour, wind $23.37 and "clean coal" $29.81. By contrast, normal coal receives 44 cents, natural gas a mere quarter, hydroelectric about 67 cents and nuclear power $1.59. . . .
The same study also looked at federal subsidies for non-electrical energy production, such as for fuel. It found that ethanol and biofuels receive $5.72 per [million] British thermal unit[s] of energy produced. That compares to $2.82 for solar and $1.35 for refined coal, but only three cents per [million] BTU[s] for natural gas and other petroleum liquids.
UPDATE: I consulted the EIA report upon which this editorial is based, and it confirms (as some commenters suggested) that the size of subsidies for non-electricial energy production was overstated. The figures originally quoted are per million BTUs, not per BTU (see Table ES6).
I'm delighted to report that my colleague Neil Netanel will be guest-blogging this week about his new book, Copyright's Paradox. Netanel is one of the top copyright scholars in the country, probably most famous for Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996), and Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001). His new book continue his work on the tension between copyright and free speech, a topic I've long been interested in; I much look forward to seeing his posts.
A Puzzling Omission:
I don't think it's a secret that The New York Times tends to be particularly one-sided when reporting on matters of concern to The New York Times. Given that, perhaps everyone expects that a Times story on conservative support for a federal reporter's privilege is going to be as much a work of advocacy as a work of reporting.
Still, isn't it a bit odd that Saturday's story on the reporters' privilege doesn't disclose that both of the credited authors, Eric Lichtblau and Philip Shenon, have been personally involved recently in high-profile DOJ leak investigations? Lichtblau was himself a target after he co-authored the 2005 NSA surveillance story. And Philip Shenon was one of the two reporters who had his phone records subpoened in the Valerie Plame leak investigation (the other was Judith Miller). I don't know the official standards for journalistic ethics, but it seems pretty fishy to me that Lichtblau & Shenon didn't disclose their background in the story.
Hezbollah's power grab in Beirut has once more plunged that city into violence and chaos. This effort to undermine Lebanon's elected government needs to stop, and all those who have influence with Hezbollah must press them to stand down immediately. It's time to engage in diplomatic efforts to help build a new Lebanese consensus that focuses on electoral reform, an end to the current corrupt patronage system, and the development of the economy that provides for a fair distribution of services, opportunities and employment. We must support the implementation of UN Security Council Resolutions that reinforce Lebanon's sovereignty, especially resolution 1701 banning the provision of arms to Hezbollah, which is violated by Iran and Syria. As we push for this national consensus, we should continue to support the democratically elected government of Prime Minister Siniora, strengthen the Lebanese army, and insist on the disarming of Hezbollah before it drags Lebanon into another unnecessary war. As we do this, it is vital that the United States continues to work with the international community and the private sector to rebuild Lebanon and get its economy back on its feet.
I hope Sen. Obama doesn't seriously believe that the conflict in Lebanon comes down to electoral reform, a fair distribution of services, and the patronage system. Or that shouting "hey, Hezbollah, what you're doing violates UN resolution 1701" is going to have any meaningful effect on the situation. H/T Michael Totten, who thinks that Obama's expressed sentiments potentially spell disaster for Lebanon.
UPDATE: Noah Pollack writes: "In the Lebanon crisis, Obama is rhetorically cornered. Since his prescription for the Middle East is diplomatic engagement, every disease gets re-diagnosed as something curable through talking."
NYU Law Dean Richard Revesz has written an interesting essay for Grist arguing that environmentalists should reconsider their opposition to cost-benefit analysis of regulations. It is based upon his new book, Retaking Rationality: How Cost Benefit Analysis Can Better Protect the Environment and Our Health, co-authored with Michael Livermore. While CBA is largely viewed as an "anti-regulatory" tool, Revesz argues cost-benefit analysis, if conducted properly, can support a pro-regulatory environmental agenda. In his view, environmentalists have been wrong to oppose the use of CBA in regulatory review, and should now seek to mend, not end, its use in regulatory policy.
Since Ronald Reagan placed cost-benefit analysis at the center of his deregulatory agenda in 1981, environmentalists have developed a strong allergy to economic analysis. They rarely participate in the debates over how cost-benefit is conducted, and do not place economic analysis at the center of their arguments for new and stronger regulation. On the other hand, antiregulatory groups like trade associations representing industrial polluters and conservative think tanks have embraced cost-benefit analysis. They argue that economic analysis shows deregulation is a good thing.
The asymmetry of participation has had several negative consequences. First, proregulatory interests consistently lose ground before the courts and OBM, which for nearly three decades has reviewed all "significant" regulations. Because OMB and the courts look to cost-benefit analysis, groups that cannot frame their arguments in economic terms are bound to lose.
Second, cost-benefit itself has become biased against regulation. It has been shaped by antiregulatory interests with little input from proregulatory interests, resulting in the adoption of several flawed techniques that tend to underestimate regulatory benefits and overestimate regulatory costs.
Finally, proregulatory interests have lost public approval as they have allowed themselves to be portrayed as extremists in pursuit of "big government." This loss of public support saps political will for new and updated regulatory programs.
Environmentalists made a particularly grave error by failing to advocate for more neutral cost-benefit analysis during the Clinton administration. When Bill Clinton took office, many expected him to drop cost-benefit analysis from the process of regulatory review. Instead, he embraced it, and took some steps to make it more transparent and fair. Environmentalists had eight years to try and remove the antiregulatory biases from cost-benefit analysis, but they let the opportunity pass. I served on an EPA committee charged with making recommendations about cost-benefit analysis to the agency, and during all of our meetings -- which were always well attended by industry groups pushing an antiregulatory agenda -- environmentalist never came. When negotiations are conducted with an empty chair in the room, it is hardly surprising when the results come out skewed.
The environmentalist antipathy to cost-benefit analysis is somewhat ironic because environmentalists once championed the use of CBA for public works projects. Applying cost-benefit principles to dams, reclamation projects, and the like, they argued, would reveal these projects to be as economically wasteful as they were environmentally harmful. This idea worked for a time, until the Bureau of Reclamation, Corps of Engineers, and other agencies hired their own economists and learned to use the process to their advantage.
Revesz is certainly correct that CBA, neutrally applied, is not inherently "anti-regulation." During the Bush Administration, the reliance upon CBA led OMB to issue several "prompt letters" urging agencies to adopt additional regulatory measures that appeared to be cost-justified. True CBA devotees follow the numbers, not their own preference for or against regulatory interventions. While CBA is often used to criticize regulations, in some instances CBA methodology has an inherently pro-interventionist bias, insofar as it elevates collective net welfare maximization over consideration of individuals' subjective value preferences. Just because a given project or regulation is "net-beneficial" does not mean it makes for good policy. We also must be wary of overly precise cost-benefit calculations that understate uncertainties or gloss over the difficulties of quantifying important variables.
There is little doubt that more complete information about the likely consequences of government action should improve government decision-making. Just as the National Environmental Policy Act (NEPA) can foster improved public decision-making by forcing government agencies to consider the environmental consequences of their actions, CBA requirements can foster a more complete consideration, and public accounting, about the pros and cons of regulation. CBA can inform public debate, but it cannot resolve all regulatory policy disputes. Even the best CBA is no substitute for discussion and debate over competing policy agendas and the normative preferences upon which they rest.
The Ohio Democratic Party officially withdrew its 2006 endorsement of Marc Dann for Attorney General. (The official resolution is reproduced here.) Though largely symbolic, this move strips Dann of the privileges of an elected official within the party, and officially changes his status from that of a Democratic officeholder, to an "Independent elected as a Democrat." The Ohio AFL-CIO, a key Democratic constituency, has also called for Dann to resign.
Dann stubbornly holds onto his position, seeking personal and professional vindication. He claims he can still serve the Ohio people effectively, but there are doubts he was ever particularly good at his job -- either as AG or in private practice.
When Dann was elected as Ohio's top lawyer in 2006, he had practiced at a small Youngstown law office handling divorces, business filings and routine criminal cases. His record included a reprimand from the Ohio Supreme Court for mishandling a divorce case and the lowest rating in a respected law directory.
Dann's “C” rating on the Martindale-Hubbard peer rating system, which only grants ratings of A, B and C, is troubling for a lawyer of Dann's experience, said John T. Brown, a Mansfield lawyer who previously served on the Ohio Supreme Court's commission on grievances and discipline. Dann, 46, was licensed to practice law in 1987.
“All I know is he has a very low rating for being a lawyer in practice that many years,” Brown said. Most successful lawyers move up to an “A” or “B” rating after five or 10 years in practice, he said.
Happy Mother's Day! Let's celebrate with a lyric or song. What are your favorite songs or lyrics for, about, or otherwise related to mothers and motherhood? Celebratory songs are certainly nice -- and perhaps preferred -- but not required.