Saturday, October 25, 2008

Biden vs. T.V. Anchor:

This is one of the most tendentious interviews of a political candidate I have ever seen. Despite his reputation as a gaffe-prone blowhard, I think Biden handled the questions, and the questioner, very well.


Preemption, Illinois, Zip Code 61276:

Just learned about this, thanks to commenter cathyf. If anyone knows the story behind it, please let me know. And please feel free to mention other similarly amusing names, though stay away from the obvious ones (this and this, plus the others linked to from here) unless you have something new to say about them.

Oh, and if you want to use Google directions to get to UCLA, don't ask for Westwood, CA.

UPDATE: According to Edward Callary, Place Names of Illinois, the name stems from "the preemption laws passed by the U.S. Congress that gave squatters the right to 'enter' (register) their land with the government and purchase it later when the tract became legally available for sale. The preemption laws protected settlers from claim jumpers and from having to bid against speculators at open auction." I found some 1800s court cases that confirm the existence of settler-protective "preemption laws," so this adds plausibility to the account. Thanks to commenter Alfred for the pointer.


Law Requiring Candidates "To Obtain and Recite, In Any ... Advertisements, the Explicit Authorization Received from an Endorser" Struck Down

by the Maine Supreme Court. Some key language:

The restriction on speech embodied in section 1014-A is not, however, limited in application to fraudulent or libelous statements made in the context of an election. Instead, section 1014-A sweeps broadly enough to prohibit the use of an endorsement that was actually made.

The fact that the unauthorized use of an endorsement is not necessarily fraudulent is amply illustrated in this case. Mowles’s use of the 2004 general election endorsements of Senators Snowe and Collins in his 2006 primary campaign was, as the Commission found, unauthorized. Mowles’s flyer, however, did not misrepresent the truth because it included, albeit in smaller type, the fact that the endorsements dated back to October 2004.

Today’s society is no stranger to advertising that relies on fine print and other less-than-prominent disclaimers to stay within the bounds of the truth. Although the fairness of these approaches can be questioned, they are generally not, without more, fraudulent. With respect to political endorsements, there are myriad circumstances in which a candidate might publish an endorsement without the express authorization of the endorser and not commit a fraud on the public. In any event, at no point in this proceeding has the State asserted that Mowles’s use of the endorsements of Senators Snowe and Collins was fraudulent.

Free speech is accorded great value in our society. Although the State need not “sit idly by and allow [its] citizens to be defrauded,” “it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” Because section 1014-A captures far more speech within its grasp than it can legitimately hold as a fraud-preventing measure, it cannot be sustained by the State’s special interest in preventing false statements in an election where time does not allow for such statements to be counterbalanced by the truth. Thus, even if the State’s concern regarding fraud were supported by any fact in this record, the statute is not narrowly tailored to address that interest.


Campaign Staffers Withdraw Voting Registrations:

From a Columbus Dispatch story on election developments in Ohio:

Starting today, county elections boards can begin verifying voter eligibility for absentee ballots cast and discard envelopes to process ballots for scanning. Those envelopes are the only way to link a ballot with a particular voter.

With that deadline looming, 13 Obama staff members sent letters yesterday to the Franklin County Board of Elections voluntarily withdrawing their voter registrations and any absentee ballots cast.

County Prosecutor Ron O'Brien wrote to the campaigns this week reminding them that state law doesn't allow temporary residents to vote; voters must live at their registered address for at least 30 days before the election and intend to become permanent residents.

But no McCain staffers followed suit. "We have consulted with elections officials and have written them to confirm that our staff meet all requirements of Ohio law and are legally registered to vote in the state," said Jon Seaton, McCain's regional campaign manager.

Related Posts (on one page):

  1. Campaign Staffers Withdraw Voting Registrations:
  2. Update on Outsiders Voting in Ohio:
  3. Outsiders Voting in Ohio:

Were Background Checks on "Joe the Plumber" Illegal?

The Columbus Dispatch reports that state officials are investigating whether state employees illegally accessed the BMV records of Samuel Joseph Wurzelbacher, aka "Joe the Plumber."

Public records requested by The Dispatch disclose that information on Wurzelbacher's driver's license or his sport-utility vehicle was pulled from the Ohio Bureau of Motor Vehicles database three times shortly after the debate.

Information on Wurzelbacher was accessed through accounts assigned to the office of Ohio Attorney General Nancy H. Rogers, the Cuyahoga County Child Support Enforcement Agency and the Toledo Police Department.

It has not been determined who checked on Wurzelbacher, or why. Direct access to driver's license and vehicle registration information from BMV computers is restricted to legitimate law-enforcement and government business. . . .

The attorney general's office is investigating whether the access of Wurzelbacher's BMV information through the office's Ohio Law Enforcement Gateway computer system was unauthorized, spokeswoman Jennifer Brindisi said.

"We're trying to pinpoint where it came from," she said. The investigation could become "criminal in nature," she said. Brindisi would not identify the account that pulled the information on Oct. 16.


ARMs and the Interest Rate Spread:

This is pretty interesting:

The bars show the percentage of new mortgages at any given time that are adjustable rate mortgages. As you can see, this ratio has fluctuated over time, going over 60% in the 1980s and over 50% at times in the 1990s. Right now it is very low (under 10%).

The line shows the "spread" between the prevailing interest rate on 30 year fixed rate mortgages versus ARMs. ARMs are always lower because with a FRM the borrower is essentially paying the lender to bear the risk of interest-rate fluctuations as well as (in the U.S.) the unlimited right of the borrower to refinance when interest rates go down means that the lender bears the prepayment risk as well. Borrowers pay a lot for this insurance--as you can see, the spread is usually in the neeighborhood of 100 to 150 basis points, although it fluctuates higher and lower as well.

Note the general pattern here--the percentage of mortgages that are ARMs almost perfectly tracks the spread between the interest rates on ARMs and FRMs. As ARMs become less expensive relative to FRMs, the percentage of ARMs rises. The artificially low rates on ARMs as a result of easy money policies during the early 2000s created the gap between short and long term rates.

The problem, of course, is that this spread can disappear in one of two ways. Either the rates on FRMs can come down, or the rates on ARMs can go up. In the 1980s and mid 1990s, the FRM fell. This last go around the rate on ARMs rose. Which has helped to spur the foreclosure problems we see, especially in areas of the country with a lot of ARMs.

Note also that this is not an issue of subprime v. prime--the regularity of the interaction between ARMs and FRMs held prior to the existence of the subprime market, and in fact, the percentage of ARMs in the market was much higher at times in the past.

What got me thinking about this more specifically is Stan Leibowitz's article "Anatomy of a Train Wreck," where he emphasizes the role of ARMs in the foreclosure crisis. The article is excellent and I agree with almost the whole thing with one caveat. Stan argues that the rise in ARMs is a proxy for a rise of speculation in the real estate market. His argument is that speculators disproportionately selected ARMs with an intention of flipping the property before the interest rate reset and that the are thus also disproportionately represented in foreclosure. I agree that the role of speculators is important and that before we do anything drastic with respect to foreclosure relief we want to figure out the extent to which speculators are disproportionately represented in foreclosure.

What this chart seems to suggest, however, is in the larger picture the ARM issue is separate from the speculator issue. The popularity of ARMs is driven by the interest rate spread between the interest rates on ARMs and FRMs and in the past we have seen ARMs become popular even for prime borrowers in real estate markets that weren't as crazy as we've seen this past several years.

This is something that I suspect we knew intuitively, yet it is striking to see it on a graph like this. Teh only real anomaly seems to be in the early to mid-1990s, when the spread rose dramatically yet ARMs did not, before exploding in a wave of ARMs around 1995 or so.

As I discuss in my forthcoming article on "The Law and Economics of Subprime Lending," ARMs are standard in most of the world and it is the United States that is an outlier in terms of having 30 year fixed-rate mortgages with unlimited prepayment rights.


Friday, October 24, 2008

No Child Custody Preference for Public Schooling over Home Schooling:

Staub v. Staub, decided Tuesday by a Pennsylvania appellate court, holds that in child custody cases where the parents disagree about whether to send their children to public school or to home school them, there is to be no rule or presumption in favor of public schooling. "To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling," without any presumption that one or the other is more in the child's best interests.

Related Posts (on one page):

  1. Home Schooling and Child Custody:
  2. Home Schooling as Factor in Child Custody Decisions:
  3. No Child Custody Preference for Public Schooling over Home Schooling:

Which Is Better -- "Pre-emption" or "Preemption"?

Of course, we all know that the best solution is preëmption, but I'm curious what people think about the other two options.

By the way, I'm pretty sure both are fully standard -- neither can be said to be "wrong" as a matter of standard English usage, though particular publications may have style manuals that insist on one or the other.


"Fair Culture":

The term was apparently coined in a report cowritten by an official in the Finnish Ministry of Education, Science and Culture, and published by the International Federation of Arts Councils and Culture Agencies:

Fair culture means the realisation of cultural rights and the inclusion of everyone in cultural signification, irrespective of their age, gender, ability, or ethnic, religious and cultural background.

And, yes, "fair culture" does seem to refer to cultural production -- "Participation in cultural supply" and "Opportunities for, inclusion in and capability for cultural self-expression and signification" -- as well as cultural consumption. And here I thought that participation in cultural supply ought not be irrespective of ability.

Incidentally, I found this report because I saw it quoted favorably in a draft of what promises to be a prominent book; so it can't, I think, be lightly dismissed as some sort of outlier.


Want To Go to Law School Because You're Interested in Internet Law?

Would-be law students occasionally ask me what's the best way of getting into Internet law. What school should they go to? How should they prepare? I'm not sure what the right answer is, but I thought I'd pass along some tentative thoughts:

1. Be skeptical about your initial interest. If you're excited about Internet law, that's great. But keep in mind that you probably know very little about what Internet law practice is actually like, and that Internet law practice (even if you can get into it) tends to be very little about the Internet as such.

My sense, for instance, is that most cases involving "Internet law" actually involve the application of familiar cross-medium legal principles — contract law, copyright law, contract law, trademark law, libel law, insurance law, did I mention contract law?, free speech law, jurisdiction law, and the like — to Internet transactions and businesses. Occasionally, you do have cases that turn on Internet-specific rules, or rules that end up operating differently on the Internet. But those cases are rare, and even those cases will mostly be about general legal principles and only partly about "Internet law" as such.

Perhaps you'll still be excited about them because they involve the Internet, just as many entertainment lawyers or sports lawyers get and stay excited about their fields even though the legal rules may be largely the same as for other business transactions. But you might well conclude that you'd gladly do copyright law generally, whether tied to the Internet or not, or that you don't much care for litigation generally, whether tied to the Internet or not.

2. Be open to other interests. Recall also that you probably don't know how much you might be interested in other legal subjects and other practice areas, which you just haven't studied. What if you find criminal law — or even tax law, bankruptcy law, or securities law — especially fascinating? (Though tax law doesn't sound sexy, many people come to like it a great deal, and see it as an unusually intellectually stimulating field.)

It may well be that several years from now, when you've seen more of the law, you'll find some other area to be more interesting than the one that fascinates you now. So stay open to the possibility, and don't focus too much on your current interests in choosing a law school, or preparing for law school.

3. Choose law school based on its overall quality, not its specialization. Law school really is primarily about teaching you how to think like a lawyer, and teaching you the skills and concepts that lawyers regularly use. It will also teach you specific legal rules, but most of the important ones — even for people who want to specialize in, say, Internet law — are rules that you'll learn at any good law school in generalist classes such as copyright law, trademark law, free speech law, and the like. And the other things you need to know you'll be able to pick up yourself, either in practice on in doing independent research projects during law school.

Relatedly, the credential value of a law school education will mostly turn (or so I've seen) on the reputation of the law school, coupled with your performance in law school, not on the reputation of a particular program within the law school. There might be exceptions, but I think this is the general rule.

So you might want to choose a top-tier law school, if you can get into it, because it has such a good reputation. Or you might want to choose a mid-tier law school in which your predictors (LSAT score and undergraduate GPA) are near the top or the high middle, rather than the one top-tier law school that let you in even though your predictors would place you at the bottom of the class. (There's something to be said for either approach.) Or you might want to choose a law school that's in a city where you'll be close to family. But I wouldn't much focus on the law school's specialty offerings, even if I knew that I wanted to practice, say, cyberspace law. And I certainly wouldn't much focus on the specialty offerings if I concluded that I couldn't reliably predict what I'd eventually want to practice (for the reasons given in points 1 and 2).

4. Choose pre-law classes that will improve your writing skills. (Almost) no matter what kind of law you'll want to practice, writing will be one of the most important skills you can have. And while good legal writing follows somewhat different conventions from good writing generally, the two have a lot in common. Moreover, while law school will teach you a lot about some lawyerly skills — reading cases, reading statutes, constructing arguments, and "thinking like a lawyer" — and while law school will try to teach you something about legal writing, you probably won't learn anywhere near enough about writing in law school alone. So the more you can improve your writing before law school, the better.

5. Should you choose other pre-law classes that fit your current expectations about your future career? All this having been said, should you still try to prepare for an Internet law career by studying more about Internet architecture, or computer programming, or what have you? After all, if you're thinking this hard about going to law school, you're probably the preparing type — shouldn't you do something special to prepare?

I'm not sure, because if you're already so interested in Internet law, you probably know a decent amount about the underlying technology and the underlying business structures. And it's not like you really have to know a vast amount of technology to do a good job as an Internet lawyer. (You might need to know a lot of biology to be a biotech patent lawyer, though I've heard some patent lawyers express doubt even about that. But my experience has been that most Internet law issues can be understood with a decent but not vast amount of understanding of Internet technology.)

But, hey, if you really want to take those classes, go ahead. At least you'll be interested in them, you'll get good grades, and you might have a better GPA when you apply to law school.

* * *

In any case, that's my tentative thinking about the subject; I'd love to hear what others have to say.


Interesting Sixth Circuit Decision on Probable Cause: The Case: United States v. Hodson (6th Cir., Sept 19, 2008).

  The Panel: Judges Batchelder, Norris, and Gibbons.

  The Facts: Undercover agent posing as 12 year-old boy is exchanging instant messages online over AOL with someone using the screenname "WhopperDaddy." "WhopperDaddy" states to the boy that he "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." The suspect then "expressed his desire to perform oral sex" on the boy.

  The undercover agent subpoenas AOL, finds the address of the suspect based on the billing information on the credit card used for billing, and a few weeks later executes a warrant at the home for child pornography. The search uncovers imagines of child pornography, and the defendant is convicted of possessing the images.

  The Legal Issue: The defendant appeals, arguing that that the warrant affidavit lacks probable cause that child porn would be in the home, and that no reasonable officer could have a good faith belief that the warrant contained probable cause.

  The Holding: Conviction reversed, as there was no probable cause and no reasonable officer would think there was:
  It is beyond dispute that the warrant was defective for lack of probable cause — Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial. The question presently before us is whether any other consideration — specifically, the Leon good-faith exception — can overcome the defect and justify admission of the evidence anyway. For the reasons that follow, we conclude that it cannot.
  The question we address here is whether the faceless, nameless “reasonably well trained officer” in the field, upon looking at this warrant, would have realized that the search described (for evidence of the crime of child pornography) did not match the probable cause described (that evidence would be found of a different crime, namely, child molestation) and therefore the search was illegal, despite the magistrate’s decision to the contrary. We conclude that any “reasonably well trained officer” would certainly have come to that realization if presented with this warrant.
  Otherwise stated, we conclude that it was unreasonable for the officer executing the warrant in this case to believe that probable cause existed to search Hodson’s computers for child pornography based solely on a suspicion — albeit a suspicion triggered by Hodson’s computer use — that Hodson had engaged in child molestation.
  My Take: When a law-and-order panel reverses a criminal conviction on procedural grounds, it's pretty tempting to say it must be right and to just leave it alone. But I'm actually not so sure the panel was correct.

  The court reversed the conviction on the ground that the affidavit established probable cause for one crime (child molestation) but asked for evidence of another crime (child pornography) without explaining the gap. But at least off the top of my head, I'm not aware of caselaw for the view that probable cause can be divided so sharply. The target did more than just admit to past child sex activities in the past. While chatting via AOL instant message, he "expressed interest" in performing sex an undercover agent who he thought was a 12 year old boy.

  Is it really such a stretch to think that someone who does such a thing would have child pornography images somewhere in the home? Based on reading a lot of these cases (and working on some when I was at DOJ), I would be rather surprised if such a person didn't collect images, actually. Even the Supreme Court has linked the two. See Osborne v. Ohio, 395 U.S. 103 n.7 (1990) ("Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.").

  I think it's fair to say the evidence presented wasn't strong enough to establish probable cause. But at least off the top of my head, I would think that there was enough there to satisfy the Leon good faith test. Or am I thinking of this the wrong way?

Unconstrained Conservatives (and Constrained Liberals):

Peter Robinson's column on Thomas Sowell and "A Conflict of Visions" focused me on a point that I hadn't thought of previously. A Conflict of Visions originally was written back in the 1980s and Peter's idea in the interview was to try to frame the 2008 election through the lens of the constrained and unconstrained visions, so some larger principles were obscured.

For those who haven't read the book, but want the one paragraph summary, a book review by Charles Murray captures the distinction tolerably well (although quite oversimplified):

Its thesis: The policy arguments between liberals and conservatives, socialists and libertarians, do not arise just from differences in priorities regarding freedom, equality, and security. At root, they draw from different conceptions of the nature of man. The Left holds an unconstrained vision: Given the right political and economic arrangements, human beings can be improved, even perfected. Success is defined by what people have the potential of becoming, not by people as they are. The Right holds a constrained vision: People come to society with innate characteristics that cannot be reshaped and must instead be accommodated. Success in political and economic policy must be defined in light of those innate characteristics.

The "constrained" and "unconstrained" visions often map onto "conservative" and "liberal" ideologies. But not invariably. And a point that I hadn't really thought of previously was that one of the strange things about George W. Bush is that in many ways although he calls himself a conservative (I express no opinion here whether that is accurate) I think his fundamental vision is an unconstrained vision. Some of his signature initiatives such as "No Child Left Behind" and the Iraq War animated by really quite a utopian mindset--the former by a really bold assumption about the intellectual capabilities of every child the latter by the aspiration of nation-building. What is important is not whether he was right or wrong in these cases (the nature of a conflict of visions is that they are different, not correct or incorrect), but rather that they reflect an unconstrained vision of the world.

It is also possible to be a liberal with a constrained vision--Daniel Patrick Moynihan, I think was a good example of a liberal with a constrained vision. As perhaps was Harry Truman, although I know less about his particular policies.

Sowell dumps on Obama as a prototype of an unconstrained vision and Robinson's questions frame McCain as a constrained vision guy. But while I think this is accurate with respect to Obama, McCain is far from a pure exemplar of the constrained vision. In particular, McCain-Feingold campaign finance reform is a prototype of an unconstrained vision--the utopian belief that we can take self-interest out of politics and that if left to their own devices politicians will pursue the "public interest" in an unbiased manner. It would be hard to think of a better example of legislation inspired by an unconstrained vision. Similarly, McCain's apparent belief that the financial crisis was caused by some "greedy" bad guys on Wall Street doing bad things is almost a parody of the unconstrained vision.

I note one other point in passing--I recall when the book was published, libertarians criticized it because they thought that Sowell had left them out by focusing on what they read as just conservative and liberal ideologies. I think that this criticism is misplaced. Visions cut deeper than political ideologies. Political libertarians tend to fall into Sowell's two categories. Libertarians of a Hayek/Friedman bent are fundamentally constrained vision people, seeing the world through the lens of scarcity, conflict, and tradeoffs. Rights-based libertarians of a Rand/Nozick bent I think are generally unconstrained vision, seeing the world as largely in harmony and cooperation. Of course, they borrow from one another, but I think that libertarians are generally animated by one of the two visions.

The real point of Sowell's book, is just to describe these visions, not to prove that one or the other is "correct."

BTW, the Robinson column was the aftermath of an interview that Peter did with Sowell last week that I happened to be able to see when it was being filmed (I understand that it will go up on the National Review Online website at some point). Sowell mentioned to me that "Conflict of Visions" was his favorite book and that when he set out to write it, he thought that "Conflict of Visions" would be as long as "Knowledge and Decisions" turned out to be and vice-versa. His personal graciousness and humility were really touching as well.

I also asked Sowell whether he had ever come across Robert Pirsig's "Zen and the Art of Motorcycle Maintenance." I think that Pirsig's distinction between the "classical" and the "romantic" view is conceptually similar to Sowell's distinction between the constrained and unconstrained visions. He said he had not read it.


A reader alerts me that Julian Sanchez anticipated some of these points about GWB's unconstrained vision, especially about the Iraq War, a little while back. If I read Julian correctly, one key point he makes is that it is neoconservatism that has introduced the unconstrained vision into "conservative" thought, which strikes me as a perceptive insight.


"Constitution in Exile":

I really like Jeffrey Rosen of G.W. Law School and the New Republic, as a writer, a scholar, and a person (we were classmates at Yale Law School). But it really irritates me that he continues to write of "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile," even though Randy Barnett, Orin Kerr, I, and others have pointed out that one cannot find any indvidual "activist conservatives" who actually use, or have used, that phrase, beyond one use in a related [and, ironically, critical] context by Judge Douglas Ginsburg in 1995. Randy summed it up quite well:

There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you [Cass Sunstein] and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.

For obscure reasons .. the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.

Similarly, I wrote:

"Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article.

The one exception since these writings appeared is that after Rosen, Sunstein, et al. popularized the phrase, Judge Andrew Napolitano capitalized on the publicity by writing a book with that title. I think it's fair to say, however, that even after that book was published, and even after Rosen, Sunstein, and others popularized it, the phrase has received no traction among the elite conservative legal thinkers referenced by Rosen in his latest piece.

So, if Jeff and others want to accuse "activist conservatives" of wishing to revive what they (that is, liberal critics) think of as the "Constitution in Exile," they should feel free. But to claim that "activist conservatives" go around talking and writing about it is just plain false.


Order Against Family Members:

One thing that struck me about the Mongol trademark injunction is that it applied not just to the parties -- there, the criminal defendants and those "in active concert or participation with them" -- but also to the defendants' "family members."

What justification can there be for imposing a speech restriction on someone, or even an order that he surrender property more generally, because he's a "family member[]" -- e.g., sibling, cousin, adult child, parent of an adult child, etc. -- of a criminal defendant? I would think that people's free speech rights or property rights generally can't turn on whom they happen to be related to. (Spouses are a different story, because that's a voluntary legal arrangement; likewise, parents and minor children have mutual legal obligations; but I'm speaking here of other family relationships.)

Perhaps in some situations, such as with antinepotism policies, the government acting as employer may indeed deny people certain benefits (such as a government paycheck). But when it comes to the government acting as sovereign, ordering the seizure of property, or restricting the display of symbols, how can one's relationship with a criminal defendant diminish one's legal rights? On top of that, given that this is a court order, which usually applies only to parties and to those who are indeed acting in concern with the parties, how can someone who isn't before the court be bound by the order just because of the family connection? And, finally, exactly what would "family member[]" mean in such an injunction?

Are such injunctions commonplace (even outside the quite unusual context of the government trying to seize copies of symbols)? Have courts concluded that they may indeed impose legal obligations on "family members" of parties? Has there been some evaluation by appellate courts of whether such obligations are legally permissible? I'd love to see any specific legal authorities on the subject.

Related Posts (on one page):

  1. Order Against Family Members:
  2. Court Order Seizing Copies of Mongol Biker Gang Symbol:

Court Order Seizing Copies of Mongol Biker Gang Symbol:

The federal government is prosecuting many members of the Mongols biker gang for a wide range of very serious crimes. But the unusual twist is that the Mongols symbol was apparently officially trademarked by the Mongols, the federal government is seizing the trademark as an asset, and a federal court has just ordered the criminal defendants, plus their "family members[] and those persons in active concert or participation with them," to

surrender for seizure all products, clothing, vehicles, motorcycles, books, posters, merchandise, stationery, or other materials bearing the Mongols trademark.

This strikes me as unjustified by trademark law, and violative of the First Amendment. The First Amendment first: The court is ordering the seizure of certain expressive materials -- materials that contain a particular symbol -- precisely because they contain that symbol. These materials don't constitute commercial advertising, which is less protected under the First Amendment than is other speech. (Trademark law is often justified because it tends to apply to commercial advertising, but this isn't so here.) Nor do they fit within any First Amendment exception.

It's true that the symbols could be used in certain ways that are constitutionally unprotected, for instance if someone is using the symbol to communicate to people in a particular criminal conspiracy (e.g., "you'll know your drug courier because he'll be wearing a Mongols patch on his right front pocket"), or to convey what the law views as a "true threat" to a particular person. The same can be said of swastikas, Confederate flags, or peace symbols. But that would justify punishing the people who are using the symbol in a particular illegal way, upon proof that they are so using it -- not a demand that all copies of the symbol be surrendered. (Likewise, if someone is convicted of a crime, his speech may be restricted even while he's not in prison but is out on probation or parole. But that, too, requires a criminal conviction, and not just being indicted, or being a family member of an indicted person.)

Now courts do allow the seizure of trademarked goods, generally goods that are intended to be sold, when the goods were produced without the trademark owner's permission. In some situations, that's clearly constitutionally permissible, for instance if a store is selling counterfeit trademarked clothing. The counterfeit trademark conveys false information to the consumer about the origin of the clothing, and thus the products as they are displayed by the seller qualify as constitutionally unprotected false commercial advertising (here, the trademark displayed on the clothing in the store is itself advertising for the clothing).

In other situations, the First Amendment justification for seizures of trademarked goods may be less clear. But in any case, the rationale is that the goods were produced without the trademark owner's permission, and are thus contraband. Here, unless I'm missing something, the goods were produced with the Mongol Nation's blessing; it's just that the new temporary (and perhaps eventually permanent) owner of the trademark now wants to stop their use.

I'm not a trademark law expert, but I'm pretty sure the new owner -- whether government or not -- isn't authorized by trademark law to bar such uses. For instance, if you bought a USC T-shirt with USC's permission (or got it for free from USC), and now USC's trademark is acquired by someone else who doesn't want the T-shorts worn, the new owner can't retroactively claim all the shirts are contraband.

The new owner might be able to bar the commercial manufacturing and distribution of new shirts with the symbol. But it certainly can't stop the wearing of shirts that had already been produced and distributed with USC's blessing. And it probably can't even stop the resale of such shirts (or other materials), because the first sale doctrine allows someone who lawfully acquired trademarked goods to resell them (at least so long as the resale isn't misleading).

Nor does trademark law, to my knowledge, have any doctrine that somehow avoids these results when the initial trademark owner committed various crimes, or when the trademark symbolizes criminality. At most, trademarks that are associated with crime could be denied registration because they are "immoral or scandalous," but that would limit the rights of trademark owners who want to sue for infringement -- it wouldn't increase anyone's power to block the wearing of such marks.

It's not clear to me that the government can ever use intellectual property law simply to suppress symbols that the government thinks (even rightly thinks) are supporting and promoting evil behavior. In such a case, the Court's justifications for essentially recognizing intellectual-property-based exceptions to First Amendment protection (e.g., preventing consumer confusion, maintaining some commercial property owners' rights to control the associations of their trademark, providing an incentive to create, and the like) wouldn't apply, and I don't think the exceptions should apply either.

But in any event, even if the government has exactly the same power to enforce seized trademarks, for any reason it wishes, as a private property owner would have to enforce its trademarks, I don't see how the power would extend to this situation.

Finally, I should stress that none of this is a criticism of the general prosecution of the Mongols -- it sounds like many of them committed very serious crimes, and they should be seriously punished for them. But I don't want to see this case become the occasion for further broadening of intellectual property-based speech restrictions, or for the recognition of a government power to suppress symbols (even ones that symbolize bad organizations, and that are often used by bad people).

For a newspaper account of the matter, see here.

Related Posts (on one page):

  1. Order Against Family Members:
  2. Court Order Seizing Copies of Mongol Biker Gang Symbol:

Krauthammer Refuses to Jump Ship: No one can accuse Charles Krauthammer of not calling it the way he sees it. Today he refused to join fellow conservative and/or Republican opinionators in abandoning the McCain candidacy. His column, McCain for President starts this way:
Contrarian that I am, I'm voting for John McCain. I'm not talking about bucking the polls or the media consensus that it's over before it's over. I'm talking about bucking the rush of wet-fingered conservatives leaping to Barack Obama before they're left out in the cold without a single state dinner for the next four years.

I stand athwart the rush of conservative ship-jumpers of every stripe — neo (Ken Adelman), moderate (Colin Powell), genetic/ironic (Christopher Buckley) and socialist/atheist (Christopher Hitchens) — yelling "Stop!" I shall have no part of this motley crew. I will go down with the McCain ship. I'd rather lose an election than lose my bearings.
This brought to mind Krauthammer's 2005 column, Withdraw This Nominee, which appeared in the Washington Post on Friday, October 7th, following the announcement on Monday, October 3, of Harriet Miers ill-fated Supreme Court nomination. Krauthammer's column along with George Will's Washington Post column on Wednesday Can This Nomination be Justified? did a lot to preempt any rush of Republicans to lock themselves in by publicly backing the nomination.

Hoax: Attack on McCain Campaign Worker Someone asked me about this story yesterday and I said, just wait a while and we'll see. Now the McCain campaign worker who claimed to have had a backward B carved in her cheek by attackers has admitted it was a hoax. Law enforcement officials did their job here. To their credit, many bloggers reserved judgment on this story, while relaying press accounts as they appeared. Story is here. (Hat tip Campaign Spot at NRO)
Police tell KDKA that a campaign volunteer has now confessed to making up a story that a mugger attacked her and cut the letter B in her face after seeing her McCain bumper sticker.

Ashley Todd, 20, of Texas, initially told police that she was robbed at an ATM in Bloomfield and that the suspect became enraged and started beating her after seeing her GOP sticker on her car.

Police investigating the alleged attack, however, began to notice some inconsistencies in her story and administered a polygraph test.

Authorities, however, declined to release the results of that test.

Investigators did say that they received photos from the ATM machine and "the photographs were verified as not being the victim making the transaction."

This afternoon, a Pittsburgh police commander told KDKA Investigator Marty Griffin that Todd confessed to making up the story.

The commander added that Todd will face charges; but police have not commented on what those charges will be.

Authorities are expected to release more details at a news conference this afternoon.

According to police, investigators working on the interview process detected several inconsistencies in Todd's story that differed from statements made in the original police report.

Pittsburgh Police Public Information Officer Diane Richard released a statement earlier today, saying: "Because of the inconsistencies in her statements, Ms. Todd was asked to submit to a polygraph examination which she agreed to do."

No photos of Todd are being released by Pittsburgh Police at this time.

Charles Fried Votes For Obama: Many VC readers are familiar with Charles Fried, former Solicitor General under Reagan (and my own con law professor). In light of that, this news from Cass Sunstein is interesting: "This week, Fried announced that he has voted for Obama-Biden by absentee ballot." More at the link. Hat tip: Yzaguirre.

Will Election Have "Seismic" Effect on Federal Courts?

The National Law Journal reports on a new Brookings Institution study on how the Presidential election could influence the composition of the federal courts.

Republican presidents have appointed more than half of the current 179 federal appellate judges, but that could rise dramatically to 74 percent if Sen. John McCain wins the presidency, or give Democrats a 56 percent majority in appointments if Sen. Barack Obama prevails, according to a Brookings Institution report issued on Wednesday.

In addition, the report by Russell Wheeler at Brookings, predicts that in four years of an Obama presidency, his appointments could shift Republican dominance on 10 of 11 circuits, to give Democratic appointees a majority in seven circuit courts. Currently, of the 11 circuit courts, only the 9th U.S. Circuit Court of Appeals has a slight majority of Democrat-appointed judges.

The balance of appointments could put solid Democratic majorities under Obama on the 2nd, the 3rd and the notoriously conservative 4th Circuit, which currently has four vacancies. It would add to the existing Democratic-appointed majorities in the liberal 9th Circuit.

Obama appointees would tip another four courts, the 1st, 7th, 11th and D.C. circuits to slight Democratic-majority appointments.

I didn't see a copy of the report on the Brookings website, but I will post a link when it's available.


The Constrained Vision, The Unconstrained Vision, and the 2008 Election:

Several times through the years I've had occasion to refer to Thomas Sowell's superb book A Conflict of Visions. This week, Peter Robinson sat down with Sowell to discuss the relevance of the book to understanding the 2008 election. Peter's column is here.

Sowell's judgment?

Asked if Obama represents the purest expression of the unconstrained vision since Franklin Roosevelt, Sowell, himself an African-American, replies: "No. Since the beginning of American politics."


Is It Because Conservatives Can't Sing?

The UK Guardian reports on the New York Times' decision to hire U2's Bono as an occasional columnist for 2009.

U2's Bono is the latest columnist to be hired by New York's esteemed newspaper. . . . the former Nobel Peace Prize nominee will pen between six and 10 articles over the course of 2009.

Bono will wax lyrical (or actually, less lyrical than normal) on the topics of Africa, poverty and Frank Sinatra, Rosenthal said.

The article also quotes Rosenthal suggesting he'd like to publish other celebrity opinions and commentary as well. And then there's this tidbit:

Though rockers and pop stars are welcome, another group faces an uphill battle on to the New York Times' editorial page - conservatives. "[US Secretary of State] Condoleezza Rice is a particularly bad op-ed writer," Rosenthal said. However, the problem doesn't end there. "The problem with conservative columnists," Rosenthal said, "is that many of them lie in print." And they can't sing.


Post-Granholm Challenge to Tennessee Wine Regs:

The U.S. Court of Appeals for the Sixth Circuit gave a little bit of good news to Tennessee oenophiles today in Jelovsek v. Bredesen. Judge Norris, writing for a unanimous three-judge panel, summarized the opinion as follows:

These consolidated cases ask the question whether Tennessee laws governing the wine industry violate the dormant commerce clause of the Constitution. This is one of several lawsuits filed across the country after the Supreme Court invalidated wine-related laws in Michigan and New York which allowed only in-state wineries to sell and ship wine directly to consumers. Granholm v. Heald, 544 U.S. 460 (2005). . . .

The district court granted defendants’ Fed. R. Civ. P. 12(c) motion for judgment on the pleadings. Jelovsek v. Bresden, 482 F. Supp. 2d 1013, 1023 (E.D. Tenn. 2007). The district court concluded that since both in- and out-of-state wineries are prohibited from selling and shipping wine directly to Tennessee consumers, this case is distinguishable from Granholm. The invalidated laws in Granholm denied only out-of-state wineries the ability to ship to consumers, a disparate treatment that the Supreme Court ruled unconstitutional.

We agree with the district court that the Tennessee shipping restrictions are distinguishable from those struck down in Granholm and affirm the district court’s judgment as to the Tennessee ban on the direct shipment of alcohol to consumers, including wine. However, the wineries make a broader challenge to the Tennessee regulatory scheme for alcohol, specifically wine. As discussed below, we conclude that certain other challenged laws are discriminatory on their face, and thus vacate the district court judgment as to those laws, and remand for further proceedings.

UPDATE: I should have provided more detail on the laws at issue in the initial post (and made sure that the link to the case worked). The other rules at issue are those imposed under the Tennessee Grape and Wine Law. The Sixth Circuit concluded that these rules are facially discrminatory. The Court described the relevant law as follows:

The Grape and Wine Law, inter alia, restricts winery licenses to individuals who have been Tennessee residents for at least two years, or to corporations whose stock is wholly owned by Tennessee residents of at least two years; and permits Tennessee wineries which use a sufficient percentage of Tennessee-grown grapes in their wine production to serve complimentary samples to patrons, and to sell at retail directly to customers without any additional license. Id. § 207(d), (f). The Grape and Wine Law also provides that, notwithstanding the transportation restrictions in other statutes, wine purchased at a Tennessee winery may be transported within the state of Tennessee. Id. § 207(i).

As I noted above, holding that this law is discriminatory is only a "little" victory for wine lovers in Tennessee. The court remanded the question to the district court for further proceedings in which the state will have the opportunity to argue that the rules serve some legitimate local purpose for which there is no non-discriminatory alternative. The Sixth Circuit also left open whether the remedy should be eliminating the de facto exemptions for in-state wineries, or extending the exemptions to out-of-state wineries. How the district court addresses these questions will ultimately determine how beneficial the decision is for Tennessee oenophiles, as will the legislature's response to the court's reminder that wine sale regulation cannot discriminate against out-of-state producers.


Elderly Jews More Likely to Vote for Obama than are Younger Jews:

For months, there has been a constant stream of claims that unlike their hip, Progressive grandchildren, many elderly Jews would refuse to vote for Barack Obama because he's black. Jon Stewart even did a segment on it, which was both funny and nasty. Not to mention Sarah Silverman's "Great Schlep," in which young progressive Jews were supposed to persuade their clueless grandparents that it's okay to vote for the black guy with the funny name. Why this was supposed to be a particular problem for older Jewish voters, despite their history of racial liberalism, but not for other older voters, who, say, supported Jim Crow, was rarely if ever explained.

It turns out that the most recent Gallup poll of Jewish opinion, released yesterday, shows that Jews 55 and older are supporting Obama 74 to 19 percent, and Jews ages 18 to 34 are supporting him by a significantly lower margin, 67 to 29 percent. This is especially surprising because of the large concentration of older Jews in South Florida, which McCain is vigorously contesting, while other areas with high concentrations of Jews--the New York area, Chicago, L.A., the Bay Area, Maryland--have been ceded to Obama, and he will win the overall vote in those areas by huge margins.

So it turns out, at least based on this poll, that things are exactly as past elections would have predicted. Older Jews are more liberal than are younger Jews, so they vote in greater numbers for the more liberal candidate.

The poll also shows Obama doing as well as Kerry among Jewish voters. That's a bit of a distortion, because if Obama gets about the same percentage of Jewish voters as did Kerry, but beats Kerry handily in the overall popular vote, he will actually do relatively worse among Jewish voters.

Nevertheless, Obama is doing somewhat better than I expected, according to this poll. I wrote a few months ago, that Obama was virtually guaranteed at least 50% of the Jewish vote, and McCain 15%. As for the rest,

the relevant implicit question is, "in whose social circle would I feel more comfortable?" In recent elections, it's been rather clear where most Jews thought they would "fit" better. With regard to McCain versus Obama, I think the question is very much up in the air.

I'd speculate (and it's only speculation), that with the Rev. Wright, who gave many Jews the willies, having faded almost entirely from the campaign, and with McCain having chosen Sarah Palin, who is extremely unpopular among Jewish voters, Obama is doing far better in this regard than could have been predicted in the Spring.


Thursday, October 23, 2008

Lehman Bankruptcy Professional Fees May Reach $1.4 Billion:

According to this story:

Fees could reach a record $1.4 billion for lawyers, accountants and other professionals working on the Lehman Brothers Holdings Inc. bankruptcy, the largest in U.S. history.

The biggest winner will be New York-based law firm Weil, Gotshal & Manges, Lehman's adviser, with an estimated $209 million in fees, said Lynn LoPucki, who teaches bankruptcy law at Harvard University in Cambridge, Massachusetts. His projections are based on fees paid for other large bankruptcies, including the most expensive to date, Enron Corp.

Lehman, with debt of about $613 billion, will need a bankruptcy judge's approval for about $906 million in charges for professional services, LoPucki said. By comparison, court- approved expenses for the bankruptcy of Enron, the world's largest energy trader until its 2001 collapse, totaled $757 million, of which $149.4 million went to Weil.

``We're breaking new ground in the size of the fees,'' LoPucki said in an interview yesterday. ``Lehman is such a large case that there is a lot of money there. It's like the guy who robbed the banks because that's where the money was.''

LoPucki said the debtor will pay an additional $524 million of fees, most of which don't need prior court approval. These include fees to secured lenders and claims agents, as well as auditing fees unrelated to the restructuring.

Law firm Milbank, Tweed, Hadley & McCloy, also based in New York, could make as much as $58 million in its role advising the creditors' committee in the case, said LoPucki, who calculated the fees with Joseph Doherty, the director of the Empirical Research Group at the University of California, Los Angeles, law school, where LoPucki also teaches.

It breaks out this way:

Lehman asked Oct. 8 for court approval to pay Weil, led by bankruptcy partner Harvey Miller, $650 to $950 an hour for partners and counsel; $355 to $595 for associates; and $155 to $295 for paraprofessionals.

Milbank, as adviser to the creditors' committee, has requested $700 to $950 per hour for partners; $650 to $850 for of counsel; $275 to $670 for associates and senior attorneys; and $155 to $325 for legal assistants, according to court papers filed on Tuesday.

Quinn Emanuel Urquhart Oliver & Hedges, the law firm acting as special counsel to the creditors' committee, asked for $660 to $950 an hour for partners, $380 to $950 for other lawyers and $250 to $280 for professional staff.

Houlihan Lokey, as investment banker to the creditors' committee, requested $500,000 per month for the first six months and $400,000 for each month after. Houlihan also asked for deferred fees of 0.05 percent of the first $30 billion of unsecured recoveries and 0.035 percent of all unsecured recoveries in excess of $30 billion, according to the filings.


Greenspan's Testimony Today:

Greenspan was asked today when he realized there was a housing bubble. His answer was early '06. That's long after other observers (including your friendly neighborhood blogger, e.g.) had recognized that the unprecedented increase in housing prices, unconnected to any discernable fundamental factor beyond easy credit, had created a bubble.

Even more surprising, Greenspan explained that even after he realized there was a bubble, he never expected housing prices to decline so dramatically, because we had never had a nationwide decline in housing prices in the past. I'd heard Greenspan say this before, but I'm surprised he wasn't embarrassed to repeat it. Didn't he ever read a mutual fund prospectus ("past performance does not guarantee future results"). More to the point, given that the level of increase in housing prices, both nationwide and in specific markets, was unprecedented, why would anyone sensible look to precedent in determining to what extent prices may fall? In fairness, Greenspan was hardly alone in this particular idiocy, joined most prominently by the CEO of Freddie Mac.


Ron Howard For Obama: Although not particularly funny (like the Mac-PC commercials) or substantive (like the Mac-PC commercials) this celebrity endorsement is sort of amazing.


"Online Divorcee Jailed After Killing Virtual Hubby":

The AP reports:

A 43-year-old Japanese piano teacher's sudden divorce from her online husband in a virtual game world made her so angry that she logged on and killed his digital persona, police said Thursday.

The woman, who has been jailed on suspicion of illegally accessing a computer and manipulating electronic data, used his identification and password to log onto popular interactive game "Maple Story" to carry out the virtual murder in mid-May, a police official in northern Sapporo City said ....

The woman used login information she got from the 33-year-old office worker when their characters were happily married, and killed the character. The man complained to police when he discovered that his beloved online avatar was dead.

Again, seems like a sensible legal theory, because it focuses on the illegal access to the account when signing on to the system — much as would be the case whenever you accessed another person's computer or computer account without the person's authorization — and not conduct within the game that is supposedly the virtual equivalent of murder.

Had she engaged in the "virtual killing" from her own account, by using a feature of the game that made such action possible, or even exploiting a bug in the game that made such action possible, it seems to me that this would just be an interesting extra twist in the game's narrative. Such action should be dealt with by whatever mechanisms the game's operators provide (perhaps including expulsion of the misbehaving user, if the operators view such conduct as misbehavior), or at most by a breach of contract lawsuit for violating any user license agreement terms — not by the real-world criminal law.

Thanks to Daniel Domenico for the pointer.

Related Posts (on one page):

  1. "Online Divorcee Jailed After Killing Virtual Hubby":
  2. "Dutch Youths Convicted of Virtual Theft,"

Update on Outsiders Voting in Ohio:

Yesterday the Columbus Dispatch reported on voter registrations by campaign workers and others (like the Vote from Home folks) who did not live in Ohio, and how election officials are responding.

Franklin County Prosecutor Ron O'Brien is telling the presidential campaigns in Ohio that if their out-of-state staff members are just passing through for the Nov. 4 election with no plans to remain, they shouldn't vote in the state, either.

O'Brien has spoken to attorneys for both campaigns and asked election officials to review the residency status of John McCain's and Barack Obama's staff members, as well as those of other get-out-the-vote groups, who have few Ohio ties but registered and requested absentee ballots.

"One thing that is crystal-clear is the law -- if you are a temporary resident or a visitor, you are not entitled to register to vote and you're not entitled to vote," O'Brien, a Republican, told The Dispatch yesterday. . . .

O'Brien's comments about campaign staffers' residency came after a liberal group filed an election complaint alleging that members of McCain's campaign were no different than out-of-state Obama supporters accused of improperly registering and voting here. . . .

Both campaigns' Ohio spokesmen -- Paul Lindsay for McCain and Isaac Baker for Obama -- are among the out-of-staters who've registered in Ohio.

State law defines residency as a fixed habitation "to which, whenever the person is absent, the person has the intention of returning." But the statute also says: "A person shall not be considered to have gained a residence in any county of this state into which the person comes for temporary purposes only, without the intention of making such county the permanent place of abode."


Wednesday, October 22, 2008

FWS Staff to Review Seven Comments a Minute:

In August, the Bush Administration proposed substantial revisions to the regulations governing federal agency consultations with the Fish & Wildlife Service and National Marine Fisheries Service regarding the potential impact of federal agency actions on endangered and threatened species under Section 7 of the Endangered Species Act. Section 7 is the portion of the ESA that prohibits federal agencies from authorizing or undertaking actions that could harm endangered or threatened species. Toward this end, it requires federal agencies to consult with the FWS or NMFS to ensure its actions will not harm species. The proposed rules are designed to give federal agencies more discretion about when and whether to consult with FWS or NFMS, thereby limiting the effect that Section 7 has on agency action. As the Interior Department explained when the proposal was issued:

These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement.

The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.

The proposal itself is quite extensive, and generated thousands of comments - over 200,000 in fact. Normally this would result in a drawn out rulemaking process, as all the submitted comments must be reviewed and considered. In this case, however, the Interior Department is eager to get the new rules finalized before the Bush Administration leaves office. Senator Obama has indicated his disagreement with the regulatory revision and a finalized rule would be more difficult for an Obama Administration to reverse. So, according to an AP report, the FWS has assembled a special team to review the comments on the rule.

The Fish and Wildlife Service has called a team of 15 people to Washington this week to go through letters and online comments about a proposal to exclude greenhouse gases and the advice of federal biologists from decisions about whether dams, power plants and other federal projects could harm species. That would be the biggest change in endangered species rules since 1986.

In an e-mail last week to Fish and Wildlife managers across the country, Bryan Arroyo, the head of the agency's endangered species program, said the team would work eight hours a day starting Tuesday to the close of business on Friday to sort through the comments. . . .

At that rate, according to a [House Natural Resources] committee aide's calculation, 6,250 comments would have to be reviewed every hour. That means that each member of the team would be reviewing at least seven comments each minute.

It usually takes months to review public comments on a proposed rule, and by law the government must respond before a rule becomes final.

Even considering the fact that a large portion of the comments were form-letters (or their equivalent) generated by environmental activist groups, reviewing 200,000 comments in 32 hours is a stretch — and the public exposure of this process will only make it more difficult for the Interior Department to defend its rules. I was skeptical that the Administration's proposed changes will survive judicial review before, as I do not believe the ESA's consultation requirements are as flexible as the Bush Administration would like, particularly considering the way in which these requirements have been interpreted in federal court. But even if I am wrong about the legality of the proposed changes, agency failure to provide adequate consideration of public comments in the rulemaking process is just asking for more trouble. Those on the FWS comment review team better be up on their Evelyn Wood.

UPDATE: According to this report, the FWS actually received 300,000 comments, but approximately 100,000 of which were form comments of some sort generated by interest groups.


More Proof That God Loves Us: Via Slashdot, "University Researchers Developing Cancer-Fighting Beer." Apologies to Benjamin Franklin for the post title.

Euphemism of the Day:

Courtesy of

See if you can fill in the blank. Bill Ayers didn't "join a domestic terrorist group and participate in terrorist activities such as the bombings of New York City Police Headquarters in 1970, the United States Capitol building in 1971, and the Pentagon in 1972," he ___________________



Taxing Last Names by the Syllable:

From my UCLA colleague Kendra Willson's Political Inflections: Grammar and the Icelandic Surname Debate, pp. 135-37:

Only some 15% of contemporary Icelanders bear surnames inherited in a fixed form. A person's first name remains his or her primary name, while the indication of whose son or daughter he or she is is viewed by Icelanders less as a name than as a secondary descriptive label. The fact that the Icelandic telephone catalogue is organized by given name is a source of wonder to foreigners and a locus of national pride for many Icelanders....

[S]urnames entered Modern Icelandic usage [starting with the 17th century].... Over the following two centuries, the assumption of surnames by members of the upper and upwardly mobile classes became more and more common....

The first official [but unsuccessful] attempt to stem the tide of surnames was a proposal presented to ... the Icelandic parliament, in 1881.... This law would have required Icelanders to obtain royal permission before adopting a surname, as well as exacting a fee of 500 crowns ... and an annual [tax] of 10 crowns per syllable of the last name.


Man Robs Brothel, Loses Thumb: Via drudge:
  A man was ordered to be held without bail after police tied him to a recent armed robbery. But at least he has his thumb back.
  Police said Bryan Perez, 22, and an accomplice made off with hundreds of dollars in cash in an Oct. 11 raid at an alleged brothel in Washington's Columbia Heights neighborhood. According to charging documents, one of the victims took control of Perez's silver machete during a struggle and hacked off his right thumb.
I guess it was a four finger discount.

"Same Sex Marriage, Jewish Law, and American Law":

An interesting post by Bruce Adelstein on the Three Jews blog, focusing on "when Jews" -- presumably observant Jews -- "should support or oppose an American law of general applicability that is not in accordance with halacha." His conclusion: "[W]e do not base free speech law on [Jewish legal principles], and we do not even base opposite-sex marriage law on the halachic definition of marriage. We should not oppose civil same-sex marriage merely because it differs from halacha."


"Dutch Youths Convicted of Virtual Theft,"

reads an AP story:

A Dutch court has convicted two youths of theft for stealing virtual items in a computer game and sentenced them to community service....

The Leeuwarden District Court says the culprits, 15 and 14 years old, coerced a 13-year-old boy into transferring a "virtual amulet and a virtual mask" from the online adventure game RuneScape to their game accounts.

"These virtual goods are goods (under Dutch law), so this is theft," the court said Tuesday in a summary of its ruling....

Now this might sound odd -- why should the legal system police "virtual theft," especially since the ability to steal, defraud, and the like within a game may be an important part of the game? But things become much clearer when one reads the longer story, from Radio Netherlands Worlwide:

The culprits, who cannot be named due to their age, kicked, hit and threatened their classmate with a knife before the 13-year-old gave in and transferred the Runescape items, an amulet and a mask, to his attackers' online accounts.

So the theft may have been on virtual goods, but it was accomplished through physical violence in the real world, and against a real person, not an avatar. It's clearly proper to prosecute the physical attack and the threats; and I think it's sensible to prosecute it as theft as well, since the defendants did take from the victim something they had no right to take, using violence in the real world. I'd call this "real-world theft of virtual goods," not "virtual theft."

I continue to think that generally speaking the law shouldn't prohibit purely in-game "theft," "murder," "rape," and so on. But outside-game violence (or even in-game threats of outside-game violence) are the proper subject of the criminal law, including when the violence or threats coerce action or transfer of valuable objects within the game.

Thanks to Michael Williams for the pointer.

Related Posts (on one page):

  1. "Online Divorcee Jailed After Killing Virtual Hubby":
  2. "Dutch Youths Convicted of Virtual Theft,"

Origins of the phrase "reverse discrimination"

Do any commenters have information about when this term was first used, and who thought it up? The earliest use in a court case I have found is in a New York decision in 1964, but there appear to be prior uses starting at least in the 1950s. There is an urban legend that the term was invented by a Klansman. Do commmenters have any knowledge about that claim?


Is Richard Posner a "Conservative" Judge?: Stephen Griffin offers some thoughts over at Balkinization.

Wilkinson's Restraint:

Judge Wilkinson's critique of the Supreme Court's Heller decision, referenced by David below, should not be a surprise. Judge Wilkinson has always been uncomfortable invalidating legislative acts on constitutional grounds. To Judge Wilkinson, the proper exercise of "judicial restraint" requires an extreme reluctance to invalidate legislative acts. Unless compelled by precedent, Judge Wilkinson has typically preferred to defer to the "political" branches. He made this explicit in his concurrence to the en banc Fourth Circuit's decision in Brzonkala v. VPI, in which the court struck down portions of the Violence Against Women Act for exceeding the scope of the interstate commerce clause. In his view, the case was "especially difficult" because "it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint." He added:

it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, "[t]he history of the judicial struggle to interpret the Commerce Clause ... counsels great restraint before [we] determine[ ] that the Clause is insufficient to support an exercise of the national power." Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary's parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today's decision in light of history's often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.
In this opinion, Wilkinson made explicit his unease with the Rehnquist court's federalism jurisprudence, an unease also demonstrated in his subsequent decision in Gibbs v. Babbitt, in which Wilkinson voted to uphold the application of the Endangered Species Act to activities that could harm red wolves in North Carolina -- a decision that prompted a scathing dissent by then-Judge Luttig, author of the court's Brzonkala decision.

Judge Wilkinson is from a generation of legal thinkers whose view of judicial review was defined in opposition to the Warren and Burger Courts. For some in this generation, the problem was that these courts were too quick to overrule the political branches on flimsy constitutional grounds. For others, the problem was that the Court was so willing to overrule the political branches at all. This is why some conservative judges and thinkers embraced the Rehnquist Court's federalism jurisprudence while others, including Judge Wilkinson, viewed it with such trepidation. Thus, while I find Judge Wilkinson's critique of Heller largely unconvincing, I do not believe it is a surprise.

Related Posts (on one page):

  1. Wilkinson's Restraint:
  2. Judge Wilkinson on Roe and Heller:

Tuesday, October 21, 2008

Clancy, "The Fourth Amendment: Its History and Interpretation": I recently received a copy of a new Fourth Amendment treatise, a one-volume work by Professor Thomas K. Clancy of the University of Mississippi Law School: The Fourth Amendment: Its History and Interpretation. I've spent some time looking through it, and I find it a very noteworthy addition to the Fourth Amendment literature. I wanted to flag it for interested readers.

  On one hand, Professor Clancy's book is a standard treatise: It takes you through the doctrine in a very clean and straightforward way. At the same time, Clancy does two things that are unusual in modern Fourth Amendment treatises. First, Clancy takes the history and text very seriously. He includes coverage of common law practice where relevant, and he carefully compares common law standards to modern ones and explains how the law has evolved. The historical treatment makes the book a helpful resource for scholars or folks just interested in originalism. More narrowly, it's also helpful for advocates working on Supreme Court cases who are looking for Scalia's vote.

  Second, Professor Clancy avoids editorial comment. His focus is on explaining the law and its contours as clearly as possible, without expressing a view as to whether a hypothetical Justice Clancy would have concurred or dissented. I found a few places where there was editorial comment in the footnotes in response to relevant Fourth Amendment scholarship, but that was about it. I think that's very refreshing: It makes the book much more readable, as you get a nice, clear summary of the doctrine. That's not to say the book is unsophisticated; it offers a very high-level and thoughtful engagement with the cases. But the book is clearly designed to be helpful to the reader, not an argument for reform.

  Anyway, the book retails for $90, but at least right now there's a "used" copy available for sale from Amazon for $31. If you're interested in the Fourth Amendment, it's very much worth checking out.

Judge Wilkinson on Roe and Heller:

"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

With all due respect to Judge Wilkinson, an excellent, thoughtful judge, this is a terrible analogy, and one that would get a poor grade from me if made on a constitutional law exam.

Let's compare the constitutional texts at issue.

Roe: "nor shall any state deprive any person of life, liberty, or property, without due process of law." The text doesn't say anything whatsoever about abortion, and the idea that abortion was a protected constitutional right was new to American history, with no suggestion that anyone before the 1960s, much less the Framers of the 14th Amendment, thought that the liberty provision of the Due Process Clause protected such a right against the states' police power.

Heller: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The right to keep and bear arms is right there in the text, and there is a long American tradition, going back to the English common law, stressing the importance of the right to bear arms, including (though not uncontroversially) in the constitutional context.

True, "the constitutional text did not clearly mandate the result" in Heller, but that doesn't make Roe an apt analogy, as you can make the same argument about almost ANY case protecting a constitutional right.

A much better analogy to Heller would be the Supreme Court's modern First Amendment jurisprudence. "Congress shall make no law ... abridging the freedom of speech" doesn't dictate the result in any given case, because what constitutes "the freedom of speech" is not self-defining. And, if anything, the Court has stretched "the freedom of speech" far further from its historical moorings than Heller did with regard to the right to bear arms. Which raises the question of why, beyond political preferences or mindless fear of being called an "activist," a Supreme Court Justice should interpret the Second Amendment far more narrowly than he interprets the First Amendment.

In any event, in neither Heller nor modern First Amendment cases did the Court simply make up a new right out of whole cloth, as one can reasonably argue that the Court did in Roe.

UPDATE II: Commenter "Alan Gura", who may or may not be the Alan Gura who argued Heller, adds this rhetorical question: "Which judicial results are mandated by the Fourth Amendment's textual proscription of unreasonable searches and seizures?"

UPDATE: In case readers are interested, personally I don't find it all that problematic that the Court found in Roe that terminating pregnancy is a "liberty" within the meaning of that term in the Due Process Clause. What I do find problematic is that the Court provided no sound reason why that liberty right was not subject to prohibition, or even meaningful regulation, under the states' police power. Roe, in that sense, was far more radical than the case it is most often analogized to, Lochner v. New York. In Lochner, the Court acknowledged that the right to liberty of contract is subject to the police power, and that laws that truly were aimed at protecting health and safety of either workers or the public at large were constitutional even though they infringed on liberty of contract.

Related Posts (on one page):

  1. Wilkinson's Restraint:
  2. Judge Wilkinson on Roe and Heller:

Socialist a "Code Word for 'black'":

Drudge links to this blog post, which states:

The "socialist" label that Sen. John McCain and his GOP presidential running mate Sarah Palin are trying to attach to Sen. Barack Obama actually has long and very ugly historical roots.

J. Edgar Hoover, director of the FBI from 1924 to 1972, used the term liberally to describe African Americans who spent their lives fighting for equality.

Those freedom fighters included the Rev. Martin Luther King Jr., who led the Civil Rights Movement; W.E.B. Du Bois, who in 1909 helped found the NAACP which is still the nation's oldest and largest civil rights organization; Paul Robeson, a famous singer, actor and political activist who in the 1930s became involved in national and international movements for better labor relations, peace and racial justice; and A. Philip Randolph, who founded and was the longtime head of the Brotherhood of Sleeping Car Porters and a leading advocate for civil rights for African Americans.

The funny thing is that if indeed Hoover referred to Du Bois, Robeson, and Randolph as socialists, it was not because they were black,but because they were, well socialists. Robeson, in fact, was a Communist, as was Du Bois in his later years.


Draft Comment I'd Like To Submit to the U.S. Fish & Wildlife Service:

I accidentally ran across these Proposed Web Site Advertising Guidelines for the Recreational Boating & Fishing Foundation, which were published in the Federal Register with a request for public comment (due Nov. 4). I wrote up the following draft, which I plan to send in a few days, unless I'm persuaded otherwise; I'd love to hear people's comments on it.

* * *

Dear Ms. Burke:

I am a law professor at UCLA School of Law, where I specialize mostly in First Amendment law. I ran across your Proposed Web Site Advertising Guidelines for the RBFF, and it seems to me that many of them are unconstitutional.

1. Though the RBFF is a nonprofit corporation, it is clear that the Guidelines constitute government action — it is, after all, the U.S. Fish and Wildlife Service that would be adopting the Guidelines and that is publishing them in the Federal Register.

2. Advertising space on a government-run Web site constitutes a nonpublic forum. See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806 (1985) (treating advertising space on buses, dealt with in the earlier Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), as a nonpublic forum); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983) (likewise); Bryant v. Gates, 532 F.3d 888, 896 (D.C. Cir. 2008) (holding that advertising space in Department-of-Defense-published Civilian Enterprise Newspapers was a nonpublic forum); Rutgers 1000 Alumni Council v. Rutgers, 803 A.2d 679, 689 (N.J. Super. Ct. App. Div. 2002) (treating advertising space in a public university magazine as a "limited public forum," but applying much the same First Amendment rules as are applicable to a nonpublic forum).

3. In a nonpublic forum, the government may indeed restrict speech, but only if the restriction is reasonable and viewpoint-neutral. See, e.g., Cornelius, 473 U.S. at 811-13; Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 392-93 (1993); Bryant, 532 F.3d at 897-98. (If the advertising space is seen as a limited or designated public forum, the government is if anything even more restricted in its actions, but in any event must remain viewpoint-neutral, see, e.g., Rutgers 1000 Alumni Council.)

4. At least some of the proposed guidelines are viewpoint-based, for instance the bans on

* [h]ate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, marital status, sexual orientation, or language of such individual or group" (see R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992) (holding that a ban on bigoted speech is unconstitutionally viewpoint-based, even when the ban is limited to unprotected categories such as fighting words, which the proposed advertising policy would not be limited to));

* "any known associations with hate ... activities," given that hate activities likely includes speech that expresses hateful viewpoints;

* "[p]olitically religious agendas," given the conclusion in Rosenberger v. Rector, 515 U.S. 819 (1995), that exclusion of religious speech is viewpoint-based discrimination;

* "[i]nflammatory religious content," given that religious content will often be inflammatory because of the viewpoint that it expresses.

Those portions of the guidelines would therefore be unconstitutional.

5. The RBFF is of course entirely free to include and exclude whatever speech it wishes when it comes to its own editorial content on the site. See Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666 (1997). But when the RBFF accepts a wide range of advertising expressing others' views, it must not discriminate based on viewpoint in its choices of what to accept.

I should note that I'm entirely unaffiliated with the RBFF — I hadn't heard of it until I ran across these Proposed Guidelines. I also don’t knowingly represent anyone who is planning to (or even likely to) advertise on the site. Please let me know if I can offer more guidance on the matter.

Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

UPDATE: I've beefed up some of the citations.


Should Libertarians Support Nuclear Power?

The Reason Foundation has posted an on-line debate between William Tucker, author of Terrestrial Energy: How Nuclear Power Will Lead the Green Revolution and End America's Long Energy Odyssey, and the Cato Institute's Jerry Taylor over whether libertarians should support nuclear power. Tucker argues that nuclear power would be economical were it not for political interference, and should be a key element of America's energy future.

The current problem with nuclear is not its underlying economics but the current political climate in the U.S. that is hostile to nuclear and doesn't offer a level playing field. Coal is familiar and politically entrenched and so people don't question the danger it poses. Solar and renewables are showered with subsidies and mandates because they have won popular favor even though they are very low density energy sources.

The real solution then to making nuclear energy economically feasible may lie in changing the popular perception of nuclear as forbidding and dangerous. People should consider nuclear as natural as the ground beneath their feet (hence I have titled my forthcoming book Terrestrial Energy). The slow breakdown of uranium atoms is what heats the core of the earth to temperatures hotter than the surface of the sun. When we build a nuclear reactor, we are only reproducing this process in an isolated environment. Yet it is so powerful that its environmental impact is 2 million times smaller than fossil fuels or the various forms of renewable energy. If powering the world with virtually no environmental impact can't be made economical, what can be?

Taylor is more skeptical, suggesting that (like many other energy sources) nuclear power cannot compete without massive government subsidies.

Nuclear energy is to the Right what solar energy is to the Left: Religious devotion in practice, a wonderful technology in theory, but an economic white elephant in fact (some crossovers on both sides notwithstanding). When the day comes that the electricity from solar or nuclear power plants is worth more than the costs associated with generating it, I will be as happy as the next Greenpeace member (in the case of the former) or MIT graduate (in the case of the latter) to support either technology. But that day is not on the horizon and government policies can't accelerate the economic clock. . . .

Those who favor nuclear power should adopt a policy of tough love. Getting this industry off the government dole would finally force it to innovate or die - at least in the United States. Welfare, after all, breeds sloth in both individual and corporate recipients. The Left's distrust of nuclear power is not a sufficient rationale for the Right's embrace of the same.


When Tina Met Sarah:

Entertainment Weekly has an interesting interview with Lorne Michaels about Sarah Palin's SNL appearance last Saturday. Michaels was impressed by Alaska's Governor ("she's a very powerful, very disciplined, incredibly gracious woman") and said "she could have her own show." He also talks about the perils of trying to line-up political figures for SNL appearances, and explains they never planned for Palin to do that rap on "Weekend Update."


Richard Epstein on Obama:

Libertarian University of Chicago law Professor Richard Epstein has some interesting thoughts about Barack Obama in this column:

My Obama number is one. I know him through our association at the University of Chicago Law School and through mutual friends in the neighborhood. We have had one or two serious substantive discussions, and when I sent him e-mails from time to time in the early days of his Senate term, he always answered in a sensible and thoughtful fashion. And yet, for assessing the course of his likely presidency, I don't know him at all....

The dominant trope is that he will be a pragmatic president who will move in small increments toward the center, not in bold steps toward the left.

But is it all true? The short answer is that nobody knows. Virtually everyone who knows him recognizes that he plays his cards close to the vest, so that you can make your case to him without knowing whether it has registered. At this point, my fear is that the change in office will not lead to a change in his liberal voting record, as reinforced by a hyperactive Democratic platform. My great fear is that a landslide victory will give him solid majorities in both Houses of Congress, so that no stalling tactics by Republicans can slow down his legislative victory procession. At that point his innate pragmatism will line up with his strong left-of-center beliefs on issues that have thus far been muted during the campaign.

Put otherwise, Obama's vague calls for change that "you can believe in" are, to my thinking, wholly retrograde in their implications. At heart, he is an unreconstructed New Dealer who can see, and articulate, both sides on every question--but only as a prelude to championing the old corporatist agenda with a vengeance.

Unlike Epstein, I don't know Obama personally. But his fears are similar to mine. I don't believe that Obama is some kind of ogre, socialist, or terrorist sympathizer. He seems like a skillfull leader and a thoughtful person. And he has repeatedly shown that he is willing to prioritize his own political success over any ideological or personal agenda; in that respect, he's not much different from most successful politicians. I do, however, fear that the combined impact of Obama's left-wing policy views, decisive Democratic control of Congress, and a crisis atmosphere will lead to a large, difficult to reverse, expansion of government. If Obama were checked by a Republican Congress, as Bill Clinton was, I would be less concerned. But such is not likely to be the case. The danger of an Obama presidency is not so much the man himself as the political environment he is likely to have around him.


Key Lawyers in a New Administration: The ABA Journal takes some guesses at what lawyers might take the lead in a new Administration. Their guesses for a McCain Administration are here; their guesses for an Obama Administration are here.

The Canadian Assault on Freedom of Expression:

For some reason, and despite my obvious interest in conflicts between civil liberties and antidiscrimination laws, I haven't gotten around to blogging about the recent pernicious attacks on freedom of expression in Canada, courtesy of provincial "human rights" commissions.

So here are a few thoughts on how the situation in Canada is relevant to the situation in the U.S.:

(1) The slippery slope. When I was in law school, advocatse of weakening First Amendment protections to restrict "hate speech" pointed to Canada as a shining example of how egregious expression could be banned without threatening freedom of speech more generally. At the time, the Canadian Supreme Court was holding that Holocaust denial and violent, misogynistic pornography are not protected under Canadian constiutitional law. And, really, who wants to defend Holocaust denial and violent pornography? Yet, less than twenty year later, we have Canadian citizens being prosecuted for quoting biblical injunctions against homosexual activity, or for merely reprinting the Danish Mohammed cartoons. (For the latest outrage, see here, courtesy of Instapundit). So the Canadian example hasn't quite worked out as its prior advocates had anticipated. Instead of being an example of "reasonable" restrictions on freedom of expression, it has become an example of the slippery slope problems inherent in allowing restrictions on freedom of expression based on subjective views of what is sufficiently offensive or problematic to be banned.

(2) The most egregious infringements on freedom of expression in Canada have come from "human rights" commissions whose sole function is to ferret out discrimination. Not surprisingly, the functionaries who man (oops, call out the thought police) these commissions have little regard for protecting competing values such as freedom of expression, which is not part of their job description. Similarly, in You Can't Say That!, I found that many of the worst infringements on freedom of expression in the name of antidiscrimination come from state and local "human rights" agencies. The lesson: antidiscrimination statutes and regulations should be enforced by judges who are obligated to uphold the Constitution, not by "human rights" bureaucrats who don't think the Constitution is relevant (and who, in California, are (unconstitutionally) banned by statute(!) from considering whether what they are doing is consistent with the Constitution).

(3)During the Clinton Administration, lawyers at both HUD and the Justice Department--most prominently Deval Patrick*--were at the forefront of trying to blur the distinction between expression and discriminatory actions in the context of housing discrimination law. In particular, the Clinton Administration argued that merely speaking out against plans to locating facilities for the mentally ill or recovering drug addicts in one's neighborhood violated the Fair Housing Act. Only after years of severe public criticism, and several negative court decisions (e.g.), did the Clintonians back down. Judging by the Obama's campaign's claims that the McCain camp is violating the Voting Rights Act by raising questions about voter fraud, I think we can expect a reprise in an Obama Administration.

*Patrick analogized political leaflets to baseball bats, remarking that bats "are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws."


Anna Schwartz on the Economic Crisis:

Economist Anna Schwartz, Milton Friedman's coauthor on their classic work, A Monetary History of the United States, has some interesting comments on the financial crisis in this recent interview with the Wall Street Journal. She argues that the Federal Reserve's "easy credit" policy during the first half of this decade bears a large portion of the blame. The Fed's policy, of course, was one of several ways in which the current crisis was at least in part brought about by non-free market forces.


Pro Bono Defense in United States v. Lori Drew: I have blogged before about the remarkable case of United States v. Lori Drew, the so-called "MySpace suicide" case, in which the government is claiming that it is a federal crime to violate Internet Terms of Service. At the time, I had explained why I thought the prosecution was terribly misguided, and I mentioned that I had provided some informal advice to the defense.

  In the last two weeks, I have gone an important step further: I have formally joined Dean Steward, counsel for Lori Drew, as Drew's co-counsel. My participation is pro bono, based on my strong sense that the government's theory of the case poses a very real threat to civil liberties online. (Check out my 2003 article on the Computer Fraud and Abuse Act to see why.)

  In any event, I don't plan to blog much about the case, but I did want to post some of the recently-filed legal documents in the case and just mention my involvement. The documents are below. As per my usual practice when blogging about pending litigation, I'll keep the comment thread closed.

  1. Defense's Court Ordered Supplement to Motions, filed October 6.
  2. Government's Response to Court's September 23 Inquiry, filed October 6.
  3. Defense's Reply to Government's Response to Pre-Trial Conference Order, filed October 20.

"Muslim Converts 'Not Islamic Enough' for Their Adopted Son to Have a Brother":

That's a headline from a Times (London) story:

When Robert and Jo Garofalo decided they wanted to adopt a child in Morocco they knew it would not be easy. Although the law in the Muslim state had been changed to allow foreign adoptions, the couple were required to convert to Islam first[, which they did]....

So when, earlier this year, they approached Surrey [U.K.] social services for approval to adopt again from the same Moroccan orphanage, they were surprised to discover that they would have to go through the whole process again. The couple were particularly concerned that, in order to assess Samuel’s “attachment” to them, he would have to be monitored and even filmed while playing.

Equally disconcerting was that even though social workers indicated in an initial report that they would be prepared to support the second application, the couple were left with the impression that they were being asked to do more to show they were living a Muslim lifestyle.

“The Moroccan orphanage felt it would be good for Samuel to have a brother and were very positive and encouraging. They were happy with the way we dealt with Samuel’s cultural and religious needs,” Mrs Garofalo, a 40-year-old actress, said. But this was not enough for Surrey, who made clear that an assessment would go ahead only if the couple proved that they were making enough effort to live a Muslim lifestyle.

In their report, social workers noted that although the couple had stated their religion was Islam “there is no outward sign that this is a Muslim family ... Joanne and Robert are aware that the socio-religious element is an aspect of Samuel’s identity and heritage which this agency takes very seriously.” It recommended that “particular attention be given to sharing techniques and strategies with Joanne and Robert that will enhance their children’s sense of identity and legacy, particularly in view of their very public statement they made deciding to convert to Islam in order to adopt”....

Surrey County Council said that children’s services were under a legal duty to conduct an assessment on how the couple’s son was doing, and their efforts to promote his Muslim faith, before exploring a second adoption.

“The couple approached us with a view to adopting the second child and we told them that by law we had to do an assessment to find out how well the adopted Muslim child from Morocco had settled with them in this country, the security of his attachments and the likely impact on him of having a sibling with complex needs in the household. We also told them the assessment would look at their efforts to promote the adopted child’s religion and culture. After finding out these legal requirements, they decided not to continue the process.” ...

A few thoughts:

1. It seems to me there is one important reason why we'd want to make sure that adoptive parents raise the child in the birth parents' faith: To encourage the birth parents to put their children up for adoption, by removing or mitigating one reason for them not to do so (a fear that the child will be raised in a way that endangers the child's salvation). And that's true even if we don't share the parents' beliefs; so long as such birth parent fears are real, they may deter adoption placements that would otherwise happen, and that would help the child, the adoptive parents, the birth parents, and the taxpayers. It's true that there might be some opposite effects, if children end up being unadoptable because of long delays caused by waiting for just the right religion. But I suspect that the effects will quite likely be positive.

2. For international adoptions, there may also be similar reasons focused on the belief system of the birth parents' country. If Morocco stops allowing adoptions to Britain or the U.S. because there's no assurance that the child will be raised Muslim, then that might materially diminish the quantity of win-win-win-win adoptions.

3. The trick comes with policing such a system. This is especially in the U.S., where the First Amendment generally bars the government from even deciding who's really one religion or another, much less how well someone is teaching the child a particular religion. But I would think there should be similar concerns, even if mostly policy concerns and not constitutional concerns, in other liberal and religiously mixed democracies. I would be inclined to say that the solution should be some provisions through which the parents (or the parents' countries) can delegate the religious judgment to private entities. Much as Orthodox Jews who insist on kosher food rely chiefly on the certification marks provided by private religious organizations or individual rabbis -- marks whose authenticity is assured by religiously neutral trademark laws -- so a mother who wants to give a child up for adoption could provide that the religiosity of the child's new home be vetted by some religious organization of her choice.

There would have to be limits on this aimed at protecting the child's best interests: For instance, the organization shouldn't be allowed to demand that the child be taken away from the adoptive parents after the adoption is final, even if the adoptive parents leave the faith. But at least the initial screening could be conducted by the private religious organization, and perhaps the organization could even enforce certain requirements through the threat of some moderate damages liability.

4. But in this case, it seems to me that the UK authorities aren't really trying to make sure that the birth parents' wishes, or even the Moroccan authorities' wishes, are satisfied. There's certainly no sign in the Times story that the UK authorities are focused on such matters, or on the long-term viability of international adoptions from Morocco to the UK. And it seems that the Moroccan authorities are happy with keeping the Muslim conversion strictly pro forma.

Rather, the rationale seems to be that an Islamic upbringing is in the child's best interest, because Islam "is an aspect of Samuel's identity," "heritage," "legacy," "religion," and "culture." And this, I think, is wrong as a matter of morality and sound government policy (and would be wrong in the U.S. as a constitutional matter).

The trouble, I think, is that (a) small children (Samuel was only several months old when he was adopted) don't have "religion" or "culture" or preexisting religious or cultural component to their "identity," and (b) the government shouldn't take a stand on how valuable the children's "heritage" or "legacy" is. Religion and culture is something that children are taught. Identity is something that is formed by those teachings, by the child's innate biological makeup, and by the reactions of peers and the rest of the adoptive society -- not by the religion of the child's birth country.

And whether a child should be raised in the religion of his birth parents or birth country, or raised in a much less devout version of the religion, or in another religion, or raised in no religion at all is a matter on which different sets of reasonable parents can differ. I know of no empirical basis for a belief that the child will be deeply scarred by one decision or another. And in the absence of such an empirical basis, the government shouldn't take the view that one's life, whether adult or young, should be linked to the accident of the child's birth.

Nor does it matter to me that the parents might have been insincere in their conversion to Islam. That strikes me as none of the UK government's business, given that the Garofalos weren't claiming any benefit from the UK government on account of their religion. It strikes me a very hard matter for the UK government to determine in any event. (What if they were sincere and then changed their minds? What if they practice a highly reform version of Islam?) And it strikes me as being of extremely slight relevance to the best interests of Samuel, or of Samuel's potential adoptive brother.

So the Times story, if accurate, is pretty troubling, both based on its particulars -- among other things, there's now one child who's more likely to have to spend more time in a Moroccan orphanage rather than in what seems likely to be a loving family -- and in what it says about the mistaken attitudes and priorities of the English child welfare system. I hope U.S. authorities avoid going down that path, both for First Amendment reasons and for the other reasons I outlined above.


More Great Moments in Airport Security:

Last year, I blogged about my own (possibly unrepresentative) experiences with incompetence by the Transportation Security Agency, the federal bureaucracy responsible for airport security. I also pointed out that the Israeli system seems to be more rational. Now, Atlantic writer Jeffrey Goldberg reports on his somewhat more systematic study in which he was able to bring numerous prohibited items on planes without the TSA noticing:

Suspicious that the measures put in place after the attacks of September 11 to prevent further such attacks are almost entirely for show—security theater is the term of art—I have for some time now been testing, in modest ways, their effectiveness. Because the TSA’s security regimen seems to be mainly thing-based—most of its 44,500 airport officers are assigned to truffle through carry-on bags for things like guns, bombs, three-ounce tubes of anthrax, Crest toothpaste, nail clippers, Snapple, and so on—I focused my efforts on bringing bad things through security in many different airports, primarily my home airport, Washington’s Reagan National, the one situated approximately 17 feet from the Pentagon, but also in Los Angeles, New York, Miami, Chicago, and at the Wilkes-Barre/Scranton International Airport....

Among the prohibited items Goldberg successfully carried onto planes were "pocketknives, matches from hotels in Beirut and Peshawar, dust masks, lengths of rope, cigarette lighters, nail clippers, eight-ounce tubes of toothpaste (in my front pocket), bottles of Fiji Water (which is foreign), and, of course, box cutters [the weapons used by the 9/11 hijackers]."

Adding a touch of comedy to his experiment, Goldberg also brought with him some terrorist souvenirs:

[B]ecause I have a fair amount of experience reporting on terrorists, and because terrorist groups produce large quantities of branded knickknacks, I’ve amassed an inspiring collection of al-Qaeda T-shirts, Islamic Jihad flags, Hezbollah videotapes, and inflatable Yasir Arafat dolls (really). All these things I’ve carried with me through airports across the country.

I suppose you could say that a real terrorist about to attempt a hijacking would be smart enough not bring his al Qaeda T-shirt or inflatable Yasir Arafat doll with him; so maybe the TSA was right to overlook those items. The same can't be said for their obliviousness about the knives and box cutters, however.


More on Palin and Measuring the Intelligence of Political Candidates: Todd's post below on Sarah Palin brings up some good questions about how we measure the intelligence of politicians. I wanted to offer a few thoughts.

  It seems to me that when we talk about a candidate's "intelligence," we usually mean a mix of several different things. We might mean raw intellectual candle power, the sort of mind that we might expect to excel in an academic setting. We might mean charisma, the ability to impress and inspire observers. We might mean judgment, a person's ability to chose wisely among different options. We might mean articulateness, a person's ability to communicate effectively. There are some other options, of course, but those are a few of the different kind of judgments that usually factor in how we assess intelligence.

  My sense is that all of these factors are usually considered when assessing a candidate's intelligence, with the caveat that we often end up filtering these questions through the lens of how much they agree with us. Politicians who agree with us are necessarily intelligent. After all, they have the raw candle power and the judgment to see that we are correct! And politicians who don't agree with us are presumed to be much less intelligent: They either lack the candle power or judgment to "get it." These sorts of intuitive judgments mix together with some of the more objective evidence (academic pedigrees, great writing or speaking skills) to form our judgments of a candidate's intelligence.

  How might this work with Sarah Palin? If you agree with Palin's views, you're likely to figure she is obviously reasonably sharp (smart enough to get the issues) and has good judgment (she gets then right). Further, her political success proves that she has charisma (popular Governor, beat the incumbent). And if she isn't the most articulate person, well then she's just not glib. On the other hand, if you disagree with Palin's views, you're likely to think she isn't intelligent (no impressive academic degrees), she lacks judgment (she's wrong on the issues), and she's inarticulate (see Couric interviews). And if she's a charismatic person, well then it's just an empty and misleading charisma.

Related Posts (on one page):

  1. More on Palin and Measuring the Intelligence of Political Candidates:
  2. Glibness v. Intelligence:

Monday, October 20, 2008

A Real Case of Voter Fraud:

Why am I so interested in voter fraud allegations? Perhaps because the first time I looked into voter fraud allegations, they turned out to be real — ballots had been forged and an election was stolen.

Back in 1993, in Philadelphia (my home town), Democrat Bill Stinson appeared to eke out a victory over Republican Bruce Marks, largely due to a surge in absentee ballots. Although Marks won the votes cast on election day, Stinson won the district's 1,700 absentee votes by 1,000 votes. This gave Stinson a 459-vote margin of victory over Republican Bruce Marks. Stinson's "victory" kept the state legislature from falling into GOP hands — until it was discovered that Stinson had literally stolen the election.

As it turned out, Stinson campaign workers conducted an organized campaign to submit fraudulent or coerced absentee ballots. In some cases, the ballot applications and ballots were forged. In others, campaign workers filled out absentee ballots and duped voters to sign. Some voters turned up at the polls only to find that someone had already cast a ballot in their name. Dead people voted and non-English speakers were hoodwinked, and an election was stolen.

The first indication of something fishy in the Stinson-Marks election was a sudden and unprecedented surge in absentee ballot applications. There were 1757 absentee ballots cast in 1993, whereas in prior years the district barely exceeded 1,000. The Marks campaign sought to challenge many of the ballots, but without much success, in part because some ballots were opened before the polls closed (contrary to the election rules at the time).

Investigations continued after election day. The key investigative work was conducted by Philadelphia newspapers, the Philadelphia Inquirer in particular. I became so engaged in the allegations that I wrote an op-ed on the case ("How to steal an election in Philadelphia," Wash. Times, Dec. 3, 1993). A federal investigation followed, and Stinson's victory was thrown out a few months later.

Is the Stinson-Marks case an aberration? Ancient history? I certainly hope so, but it is difficult to know for sure. The temptation to manipulate elections is real, and there are activists on both sides of the aisle that would steal an election if they thought they could get away with it, and local election administration often leaves much to be desired.

Most charges of voter fraud (like most charges of voter suppression) are overstated if not simply false. There's much more smoke than fire, but the few actual cases found are still quite serious. Just because party activists and others cry wolf with impunity, does not mean we live in a wolf-free world. To the contrary, because of the Stinson-Marks case, I believe there are some real wolves out there, and that it's worth paying attention to election irregularities just in case.


Glibness v. Intelligence:

This piece by Randall Hoven on American Thinker raises a question that I've been wondering about, namely how it came to be that many people believe that Sarah Palin is not smart enough to be Vice-President. I think that what it probably explains it is a tendency to confuse glibnesswith intelligence, or perhaps more accurately, to confuse the ability to "bullshit" with actual intelligence.

The meme that has arisen that Sarah Palin isn't smart enough to be Vice-President (and potentially President) strikes me as quite implausible. Focusing on the big picture: she has been an extraordinarily successful governor with substantial policy accomplishments in a short time, she has an 85% approval rating, and she knocked off an incumbent and former governor to be elected. And, as I've previously discussed, based on my experience working with and in government, being governor of a state is an extremely difficult job, much more difficult than being a Senator (for instance). Sure there are some things that people are picking at, such as the trooper story or what really happened with the Bridge to Nowhere--but none of those things raise any doubt about her intellect or ability. With respect to the issues to which she has set herself to mastering and implementing, and the most important issues for Alaska, by all accounts she has an extremely strong understanding and mastery of the issues. It is simply not plausible to believe that she is dumb any more than it was credible that Ronald Reagan was dumb back when the establishment said the same thing about him.

Put another way, to believe the view that Sarah Palin is unintelligent you would have to have an awfully low opinion of the voters of Alaska and the overwhelming majority of Alaskans who approve of her job as governor. It seems much more plausible to me that when you are dealing with someone who has an impressive record of accomplishment as governor, won a couple of very tough elections, and has hugely high approval ratings, there should be a strong presumption that the person is capable and intelligent. And it is very difficult to hide if you are an incompetent governor (unlike being in the Senate, for instance). Alternatively, you would have to believe that she is simultaneously dumb yet so smart that she can fool the voters of Alaska into not realizing how dumb she is. There are probably some people out there who do believe that Alaskans are that dumb, but that's not who I'm thinking of. And when it comes to the issues that Palin has dedicated herself to mastering and acting on, such as energy policy, there seems to be little doubt that she understands quite well what she is doing.

Given this, how can it be that many reasonable people can suggest with a straight face that Palin is dumb--leaving aside those who actually do think that Alaskans are stupid?

My sense is that Hoven is on the right track. Some thoughtful people simply have a tendency to confuse intelligence with the ability to be glib, or more precisely, to bs. And I think that is much of what it comes down to--if Palin doesn't know the answer to a question, she just isn't that good at making something up. Biden, by contrast, is a master bs'er, as his debate performance exhibited. As a general rule, the less informed he was about the answer to a question, the more assertive he was in answering it, such as his extraordinary answer about the legislative role of the Vice-President. It is clear that he had not the slightest idea what he was talking about, yet he just plowed ahead throwing out assertions with rhetorical flair. Classic bs. Even on issues that were supposedly in his area of expertise, such as the Constitution, he wasn't even in the ballpark of being correct. Hoven picks up on Biden's whopper of answer about kicking Hezbollah out of Lebanon, but it is pretty much the same thing--aggressive bs covering a complete lack of any clue what he is talking about.

It is not uncommon to confuse glibness with intelligence. Certainly law professors do it all the time in assessing faculty candidates or students. I suspect that we are not alone in doing this. Quite obviously the establishment mainstream media falls for the same thing (at least when it fits their ideological predispositions). They also underestimated Ronald Reagan (remember the characterization of him as an "amiable dunce"), but I suspect that many of those who thought Reagan was dumb would not admit today that they held that position back then.

As a sidenote, I think McCain one reason McCain has suffered in the debastes is that he also is not a great bs'er either. Frankly, I'm not sure how smart he is--unlike being a governor where it is very hard to hide if you are dumb, it is pretty easy to hide in the "world's greatest deliberative body." And Obama is obviously quite good at bs'ing, although his style is different from Biden's--Obama has this ability to fall back on empty stock-phrases that he utters with a furrowed brow and gravitas, projecting a perception of intelligence and understanding even if what he is saying is largely devoid of substance. For instance, it seems relatively clear that neither McCain nor Obama has the slightest clue about what caused the financial crisis or what to do about it. But McCain's discomfort and lack of knowledge when it comes to talking about the financial crisis is transparent, whereas Obama is able to cogently spout empty generalities that obscure his lack of knowledge.

I have to say though, given the choice between someone who gets flustered when she doesn't know the answer to a question versus someone who doesn't know the answer but just makes something up, it is not obvious to me that the latter is smarter or better able to lead the country.


Along the same lines is this observation following on Orin's post and mine, at

It's more important that an ignorant executive be cautious than decisive. On that score, Palin is the only candidate in either ticket that seems even mildly conscious of her own ignorance. When foundering in ignorance, Obama reverts to platitudes, Biden makes stuff up, McCain suspends his campaign, and Palin asks for clarification.


Does the Financial Crisis Discredit Libertarianism?

Writing in Slate, Jacob Weisberg claims that the financial crisis discredits libertarianism:

A source of mild entertainment amid the financial carnage has been watching libertarians scurrying to explain how the global financial crisis is the result of too much government intervention rather than too little....

[T]o summarize, the libertarian apologetics fall wildly short of providing any convincing explanation for what went wrong. The argument as a whole is reminiscent of wearying dorm-room debates that took place circa 1989 about whether the fall of the Soviet bloc demonstrated the failure of communism. Academic Marxists were never going to be convinced that anything that happened in the real world could invalidate their belief system. Utopians of the right, libertarians are just as convinced that their ideas have yet to be tried, and that they would work beautifully if we could only just have a do-over of human history...

To which the rest of us can only respond, Haven't you people done enough harm already? We have narrowly avoided a global depression and are mercifully pointed toward merely the worst recession in a long while. This is thanks to a global economic meltdown made possible by libertarian ideas.

There are several problems with Weisberg's thesis. First, the US had hardly been following free market financial policies in the years prior to the crisis. Many commentators have pointed out the central role of government sponsored enterprises (GSEs) such as Fannie and Freddie Mac in promoting subprime and other risky mortgages that investors were willing to acquire in part because they believed that the GSEs would be backed by a government bailout if anything went badly wrong. As the term "government-sponsored" implies, Fannie and Freddie were hardly free market institutions. Some libertarian-leaning scholars, such as Peter Wallison in this 2005 article, have long predicted that their policies could lead to catastrophe unless reined in. The crisis was also fueled by the Federal Reserve Board's promotion of artificially easy credit over the first half of this decade. To put it mildly, libertarians have never liked the Fed. They have have often emphasized, as I did in this April post, that it is dangerous to give a small group of government technocrats vast power over the economy.

Recent American economic policy has not been especially pro-market in areas outside finance regulation either. During his first five years in office, George W. Bush presided over the biggest expansion of government spending in decades, including a major increase in regulatory spending.

Second, even if one can say that the US was following market-based policies in recent years, the same can't be said of European nations such as Germany, Iceland, and Spain, all of which have had mortgage/financial crises at least as severe as ours. If the financial crisis discredits "libertarianism" in the US, does it also discredit German social democracy? In my view, neither is true. But Weisberg's logic points in that direction.

Finally, no ideology can be judged solely by its performance in one particular crisis. Any set of policies is imperfect and therefore may provide flawed answers in a particular situation. Here is where Weisberg's analogy with communism circa 1989 breaks down. The problem with communism was not that communists had handled some one isolated crisis poorly. It is that communism's overall record over many decades was one of repression, mass murder, and economic decline - all with few or no offsetting benefits. Economic liberalization over the last several decades, by contrast, has lifted millions out of poverty around the world and greatly increased both personal freedom and standards of living. As Gary Becker points out, the period of economic liberalization in the twenty years or so prior to Bush's "big government conservatism" saw enormous economic gains. He suggests that if today's crisis were indeed an inevitable result of that liberalization, the overall balance sheet (25 years of massive progress vs. 2-3 years of painful recession) might be worth it.

It would be foolish to completely dismiss the possibility that libertarians were overly optimistic about the virtues of unregulated financial markets. It may turn out that some new forms of finance regulation will be justified. I do not believe that libertarian thought is perfect; far from it in fact. I merely think it is better than the available alternatives.

Be that as it may, libertarianism, like other ideologies, must be judged by its overall record. And that record must be compared to the overall record of the alternatives. For example, even if new regulation is indeed needed, we must be sensitive to the danger that crises such as this one present tempting opportunities for governments to expand their power in harmful ways that go far beyond what is necessary to address the crisis itself.

Weisberg is right to predict that libertarian ideas will face an uphill political struggle over the next few years. After Obama wins, government will almost certainly expand considerably, helped by a combination of united Democratic government and a crisis atmosphere. Even if McCain somehow manages to pull out the election, things won't look too good for free market ideas. Economic crises often provide a strong impetus for government intervention and the ideologies that advocate it. I'm not convinced, however, that free market advocates will be permanently defeated. Still less do I believe that they deserve to be.

UPDATE: Matt Welch has a good response to Weisberg's piece here.


Bleg About Questions from Law Students at Other Schools: I occasionally receive e-mails from law students at other schools (that is, not from GW, where I teach) asking me questions about various areas of law in which I have written. In some cases, students provide the context: Perhaps they are writing a law review note and are stuck on something, or maybe they are working on an issue that came up in a clinic. Sometimes the questions are excellent and I'm happy to help, especially when a student is working on a note related to my work. But sometimes students will write and just ask a question with no context at all. For example, a student might write, "I am a law student at school X, and I am wondering if you could explain to me how the Fourth Amendment applies in the following situation" or something like that.

  Is there a best way to respond to such e-mails? On one hand, I'd like to be helpful if it's easy to be helpful. On the other hand, as much as I would like to be a resource for the entire legal world on questions in which I write, I do feel a bit odd when students aren't particularly polite about asking me to spend my time responding to their questions (especially when it becomes clear they only know my name because they googled the topic and found a paper I wrote). I also worry about the possibility students may be cheating: for all I know they are writing a take-home exam and that's the exam question. Finally, I only have so much time, and it seems to me that I should be helping students where I teach before I take the time to help students elsewhere. I suppose one answer would be not to respond at all, but that seems rude.

  Any ideas for the best way to respond? Sorry for posting what amounts to a bleg, but I'm curious if readers have any bright ideas here.

The Copenhagen Consensus:

Ronald Bailey interviews Bjorn Lomborg about the Copenhagen Consensus in Reason. Via Zak Moore at Dartblog.

I am a huge fan of the Copenhagen Consensus project and would encourage anyone interested in a rational approach to addressing major global issues to check it out. Even if you don't agree with their final list of priorities, their methodology is quite thought-provoking.


Another "Innocent" Person About to be Executed

There has been much ado in the media lately about another "innocent" person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case. This link contains a fairly complete rebuttal of the claims made by Davis' advocates, who seem to have little interest in getting at the truth of the case. Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.

Update: A reader usefully suggested that I link to the case being made by his supporters. Here is the Amnesty International take on the case.


Palin on SNL:

This was a background tidbit that I didn't know about Sarah Palin's appearance on SNL:

When Michaels introduced him to Palin, Baldwin feigned embarrassment and replied: "I see. Forgive me. I feel I must say this: You are way hotter in person."

Palin got even, saying: "Thank you, and I must say, your brother Stephen is my favorite Baldwin brother." Stephen Baldwin is a born-again Christian who attended the Republican national convention in 2004.


Sorry, the part I meant to highlight that was a surprise to me was the bit about Stephen Baldwin being a born-again Christian and Republican. I thought it was just a dig at Alec Baldwin, but I didn't get the specifics of the Stephen reference.


Police Department Unclear on the First Amendment:

The Daily Citizen (Searcy, Ark.) reports:

Just before noon Friday, [Brian] Barnett was standing at the northwest corner of Beebe-Capps Expressway and South Main, near a former feed store containing numerous Reeves signs, holding a sign. The sign’s four lines said, “Debate Brian! Chicken s***; 1. Kyle Reeves; 2. Monte Betts.” Barnett could be seen speaking to passersby as they rolled down their windows. Nearby workmen said they did not notice Barnett. [EV: It's clear from the article that the sign said "shit," and the "s***" is the newspaper's change.] ...

“You can probably get away with saying he’s chicken, but since he’s an alderman and a member of the city council, you can’t,” [Searcy Patrolman Tyrel] Johnson told Barnett. “That word is not acceptable.” [EV: From the article and the accompanying photo, it seems that the interaction was recorded, which would explain why the newspaper claims it has an exact quote.] ...

When Sergeant Tom McGee arrived, the three went next door to a tire shop and Barnett could be heard offering to change the sign. Within minutes, however, Barnett was arrested, charged with disorderly conduct, apparently for refusing to obey an officer.

“I asked him on four occasions to remove those letters from that sign,” McGee said. “He did remove the ‘i’ but I asked him to remove the entire word.”

Barnett said on his first attempt to change the sign he changed the ‘i’ to an “L,” and when the officers were still insistent, Barnett said he changed it to an “X.” ...

“He didn’t comply enough,” said Terri Lee, police spokesman. “The ‘i’ was crossed out with a mark that looked like an “I.” It wasn’t enough. They [the officers] could still read it and they wanted it where it wasn’t offensive to anyone.” ...

It's quite clear that even vulgarities on signs are generally constitutionally protected (unless they're personal insults said directly to the insulted party). That's what the Court held in Cohen v. California as to "Fuck" on jackets, and it would equally apply to "Shit" on signs. And that's true even when sign is about "an alderman and a member of the city council," and even when the sign is "offensive to [some]one."

Thanks to my old friend (and now Arkansas State Representative) Dan Greenberg for the pointer.

UPDATE: D'oh! I accidentally mistyped "the First Amendment" as "the Fist Amendment" in the heading — as reader Dilan Esper pointed out, "Kind of changes the meaning."


Reliance on Foreign Law -- from a Republican Louisiana State Court Judge:

Louisiana law bars marriage between first cousins — but it also provides that foreign marriages should be recognized, even if they would otherwise be illegal, unless they violate "a strong public policy" of the state. This is indeed a traditional rule recognized in many states.

And it makes sense: Marriage is supposed to help people organize their lives around their marital status, and generally speaking that sort of self-organization is helpful to society more broadly (which is why the law specially recognizes and in various ways tries to encourage marriage). If people got married in a foreign jurisdiction, treating them as unmarried in the place in which they move will frustrate their expectations, likely harm one or both parties, and likely cause some harm to the state's interests that marriage advances. A state normally wouldn't want this to happen, unless it's condemnation of this particular marriage is very strong indeed.

In any case, it's clear that Louisiana law recognizes three categories of marriage: (1) A clearly defined category of marriages that may be entered into in Louisiana; (2) a less well-defined category of marriages that may not be entered into in Louisiana but that are recognized if they were validly entered into in another state or country; and (3) a correspondingly not very well-defined category of marriages that aren't recognized in Louisiana at all. The question in Ghassemi v. Ghassemi was whether first cousin marriages fall into category 2 or category 3. And to answer that it is of course not enough to look at the specific details set forth in Louisiana marriage rules (which generally defines category 1 marriages, and doesn't speak in detail to the boundary between category 2 and category 3). One also has to engage in the vaguer inquiry of whether the public policy against first cousin marriage — indubitably a policy that Louisiana law does recognize — is "strong" enough to overcome the general presumption of recognizing even those out-of-jurisdiction marriages that couldn't be legally entered into in Louisiana.

In measuring the "strength" of this policy, the Court of Appeal (in an opinion by Republican Judge Jimmy Kuhn) looked, first, to whether Louisiana law categorically prohibits all first-cousin marriages and sexual relationships; it concluded that there have long been various exceptions to this prohibition. (The court specifically notes "In so concluding we note that the Louisiana Legislature has not expressly outlawed marriages between first cousins regardless of where they are contracted as it has emphatically done in the case of purported same sex marriages" (emphasis in original).) But then, it also looked to various other sources as to the depth of the prohibition on first cousin marriage, including:

  1. "natural law" (which Louisiana courts seem to refer to much more often than do other state courts, perhaps because of Louisiana's civil law tradition; the court cited an old American Law Reports annotation that discussed this subject),

  2. "Bible's Book of Leviticus, the font of Western incest laws,"

  3. the views of other states (of which about half allow some or all first-cousin marriages),

  4. the views of other "western countries": "the U.S. is unique among western countries in restricting first cousin marriages."

This strikes me as a pretty reasonable of evaluating the strength of a state's public policy in this particular situation. By definition, we've got a question that under state statutes has no precisely defined answer; the statutes expressly call for courts to determine how "strong" the public policy against the marriage is. The court should then look to other clues to the state's public policy. First, it should see what can be gleaned from other rules within the same state. Second, it should look at those rules that are historically the sources of the state's legal system (and on this point the Bible strikes me as relevant, not because of its religious nature but because of its historical role in shaping European and American incest law). And third, it should look at what similar jurisdictions think about the subject, starting with other states of the same nation but going on to other nations within the same broad culture.

Now I generally agree that American courts generally shouldn't rely on modern foreign law in interpreting the meaning of the U.S. Constitution. It's true that Western countries are often trying to solve similar problems with their constitutions, but American constitutional practices have their own history, rest on their own text, and by design created a constitutional regime that is supposed to be individualized to American life and American political thought.

But I think it's a mistake to overgeneralize this into a broad hostility to the "use of foreign law" in American courts. Using foreign law even to determine the scope of domestic legal principles is often quite sensible, even if not to determine the substantive scope of American constitutional rules — as even Justice Scalia has agreed.


Family Court Judge Refuses To Recognize Iranian Marriage:

That's what happened in Ghassemi v. Ghassemi. The judge's reasoning, as quoted by the appellate court:

This court exercising its powers vested from the state, this court will not recognize any document, decree, judgments[,] statutes or contracts and will not give comity ... and no validity whatsoever from the country of Iran [s]ince that country has been declared by itself and by its leader to be an enemy of the United States. The United States has had no diplomatic relations with that country for 28 years, and they are not a signatory to the Hague Convention with respect to marriages.

Under the court's reasoning, all couples married in Iran would have been unmarried for all legal purposes (or at least for purposes that require their going to court). They wouldn't have been able to inherit under the laws of intestate succession, they couldn't have called on the standard legal procedures for property settlement under divorce, they couldn't have sued to obtain various insurance benefits that were available only to married couples, and so on. And for no reason other than that the leaders of the country in which they were married are enemies of the United States.

The ruling would have even applied to American citizens who were married in Iran, either because they went there to get married (consider an American who goes to Iran to marry an Iranian, or two Americans who go to Iran to be married in front of their families) or because they married there and then moved to the U.S. and became U.S. citizens. Nor can the reasoning be based on the argument that the parties should have known of this consequence when they chose to marry in a country that was an enemy of the U.S. (an unpersuasive argument even when the fact support it): The claimed marriage here took place in 1976, when Iran was a U.S. ally.

Fortunately, the Louisiana Court of Appeal has just reversed this decision. "It would be a questionable policy indeed to base the status of private individuals on the fluctuation of international relations," the court concluded. I would add that it's equally questionable to base the status of private individuals — a status that is of great importance to them in their lives in the U.S., and to American governments in administering American law — on the poor behavior of the leaders of the country in which they were married.

Indeed, sometimes the bad behavior of a country's leaders does inevitably harm innocent citizens of this country. But that is something to be regretted, not something to be added to with no reason. And there really is no reason to add to it here: For instance, as the appellate court pointed out, there's no inherent problem with relying on or authenticating Iranian documents (as opposed to the potential problems with relying on or authenticating any foreign documents, which chiefly turn on country attributes other than its hostility to the U.S.).

In any case, this was a poor decision by the trial court, and a good decision by the Louisiana Court of Appeal.


No Gun Jokes at Lone Star College-Tomball:

The Young Conservatives of Texas printed a "jocular" flyer of "Top 10 Gun Safety Tips":

Top Ten Gun Safety Tips

10. Always keep your gun pointed in a safe direction, such as at a Hippy or a Communist.

9. Dumb children might get a hold of your guns and shoot each other. If your children are dumb, put them up for adoption to protect your guns.

8. No matter how responsible he seems, never give your gun to a monkey.

7. If guns make you nervous, drink a bottle of whiskey before heading to the range.

6. While unholstering your weapon, it’s customary to say “Excuse me while I whip this out.”

5. Don’t load your gun unless you are ready to shoot something or are just feeling generally angry.

4. If your gun misfires, never look down the barrel to inspect it.

3. Never us your gun to pistol whip someone. That could mar the finish.

2. No matter how excited you are about buying your first gun, do not run around yelling “I have a gun! I have a gun!”

1. And the most important rule of gun safety: Don’t piss me off.

The response was predictable (even for Texas)--hysteria. According to FIRE:

According to YCT Chairman Robert Comer, Program Manager for Student Activities Shannon Marino told him that the flyer was inappropriate and confiscated the flyers. Comer appealed to Dean of Student Development E. Edward Albracht, but Albracht also said the flyer was inappropriate and invoked last year's shootings at Virginia Tech. In response, Comer made new flyers without the "Top Ten" theme and distributed them for the remainder of the club rush.

The college's efforts to censor YCT's expression did not end there. On September 11, Marino informed Comer that the school's legal department would be reviewing the flyers and that afterward, the school might disband YCT or put the group on probation for the year—simply because of the recruitment flyer.

FIRE wrote Lone Star College–Tomball President Raymond Hawkins on September 26, reminding him of the college's constitutional obligation not to subject YCT to prosecution and censorship. FIRE noted that as a public college, Lone Star College–Tomball is required to respect the First Amendment to the U.S. Constitution and to acknowledge that the flyer's contents constitute protected speech. FIRE asked President Hawkins to respond by October 10.

On October 14, FIRE received an e-mail from Brian S. Nelson, General Counsel for the Lone Star College System. Nelson stated that any "mention of firearms and weapons" is inherently a "material interference with the operation of the school or the rights of others" because such language "brings fear and concern to students, faculty and staff." Nelson also stated that "the tragedy of Virginia Tech cannot be underestimated when it comes to speech relating to firearms—however 'satirical and humorous' the speech may be perceived by some."

So because of "the tragedy of Virginia Tech" we now have a new exception to the First Amendment for "speech relating to firearms"? There is no serious argument here that the Young Conservatives were threatening anybody, so this really is nothing more than "speech relatinig to firearms."

And do we really believe that Lone Star's policy is that any "mention" of firearms "brings fear and concern" to the university campus? What about the e-mail from General Counsel Nelson--doesn't that "mention" firearms? What about any rules or regulations that the college has that governs bringing guns on campus--do those "mention" firearms? Are we now in the world of the Knights Who Say "Nee" such that any mention of the the word "firearm" creates pain and anguish for the entire university community?

And what about student speech that advocates stricter gun control laws or stricter gun policies at Lone Star--is that banned under the rule? Stricter regulation of guns would make me nervous about my safety. Or is it only speech that could be perceived as being supportive of gun rights? What else do they think they can do--create an exception to the 4th Amendment to engage in random (or non-random) strip searches of students to make sure they aren't carrying concealed weapons?

If I follow this logic, then "because of the tragedy of 9/11" Lone Star could restrict any "speech related to Islam." Or because of "the tragedy of 9/11" we could create an exception to the 4th Amendment or the 6th Amendment or the 8th Amendment.

If we are dealing with a bona fide threat, that of course is one thing. But c'mon, jokes about giving guns to monkeys and "don't look into the barrel of your gun to inspect it" could lead to disciplinary action against these kids? Absurd.

More generally, this is the sort of thing that I suspect we'll see more of in coming years--overzealous college administrators invoking the Virginia Tech tragedy to try to shut down any pro-gun speech on campus.


Patent Lawyer suggests an important admendment to the original post that I am happy to accept:

The better Monty Python reference is to "Life of Brian", where the guy is stoned for blasphemy for saying, "That fish was good enough for Jehovah." And then the official overseeing the stoning gets stoned himself for saying the word "Jehovah".


A Carbon Ultimatum?

An editorial in today's WSJ suggests that an Obama Administration will "greenmail" Congress into enacting stringent climate change policies by threatening the imposition of draconian greenhouse controls by the Environmental Protection Agency.

As Barack Obama's energy adviser has now made clear, the would-be President intends to blackmail — or rather, greenmail — Congress into falling in line with his climate agenda.

Jason Grumet is currently executive director of an outfit called the National Commission on Energy Policy and one of Mr. Obama's key policy aides. In an interview last week with Bloomberg, Mr. Grumet said that come January the Environmental Protection Agency "would initiate those rulemakings" that classify carbon as a dangerous pollutant under current clean air laws. That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress. Mr. Grumet warned that "in the absence of Congressional action" 18 months after Mr. Obama's inauguration, the EPA would move ahead with its own unilateral carbon crackdown anyway.

The problem with the WSJ's narrative is that Grumet is describing nothing more than what is legally required as a consequence of the Supreme Court's decision in Massachusetts v. EPA. Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand — and win. The legal argument that the EPA is obligated to control greenhouse gas emissions from new motor vehicles, power plants, and other sources is, at this point, a slam dunk. It does not matter that the existing Act is a particularly poor vehicle for greenhouse gas control, or even (as I believe) that the Supreme Court misread the Act. Those arguments are moot. So, whoever occupies the White House come January, if Congress does not reform the Clean Air Act to address greenhouse gases in a more sensible manner, EPA regulations will follow.


Justice Thomas on the Constitution:

Today's WSJ published excerpts from a speech Justice Clarence Thomas delivered last week in New York. Here's a taste:

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final arbiter of our Constitution. But, what rules must judges follow in doing so? What informs, guides and limits our interpretation of the admittedly broad provisions of the Constitution? And, more directly, what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation? . . .

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.


Palin and the Press:


the candidate who has been criticized for having a bunker mentality when it came to the national media can now lay legitimate claim to being more accessible than either Joe Biden or Barack Obama.

In the past two days alone, Palin has answered questions from her national press corps on three separate occasions. On Saturday, she held another plane availability, and on Sunday, she offered an impromptu press conference on the tarmac upon landing in Colorado Springs. A few minutes later, she answered even more questions from reporters during an off-the-record stop at a local ice cream shop.

By contrast, Biden hasn’t held a press conference in more than a month, and Obama hasn’t taken questions from his full traveling press corps since the end of September. John McCain—who spent most of the primary season holding what seemed like one, never-ending media availability—hasn’t done one since Sept. 23.


The Paranoid Style in American Politics:

Rocky Mountain News columnist (and University of Colorado law professor) Paul Campos used the famous essay by historian Richard Hofstadter as the template for a column last Wednesday, criticizing Republicans. In my media analysis column for the News on Saturday, I suggested that--at least based on the evidence within Campos's column--"the paranoid style" was more accurate as a description of Campos's own approach.


Sunday, October 19, 2008

Law Professor Jobs Getting Harder to Come By:

Over at The Faculty Lounge blog, Al Brophy notes that William and Mary has instituted a hiring freeze. Brophy continues:

I'm expecting freezes on hiring at many universities. I asked a friend at a major law school a few weeks back what he thought the effect of the economy would be on law school hiring. ... First, fewer people are going to be retiring; second, schools will be reluctant to fill vacancies. A handful of elite schools will be insulated from the downturn, I suppose. For all the rest of us, get ready for some more belt-tightening.... Maybe the real crunch will be felt next year; that's hard to know.

I was on the teaching job market at the tail end of the belt-tightening caused by the 1991-92 recession. It was an awful time to be trying to break into academia. I saw the statistics many years later, and something like three times as many faculty candidates were hired annually in the late '90s as in the early '90s. The last few years have also been good for prospective professors; state budgets have been flush, and many private and public law schools have received private gifts allowing them to expand their faculty.

Given the budget situation in many states, and the reduced endowments (and probably reduced giving) at private universities, things are likely to get a lot worse before they get better. Thinking about whether to go on the job market next year, or to finish that economics Ph.D./take a two-year fellowship/take that dream job working at an NGO in Geneva? The latter options should be looking relatively more attractive.


Voter Registration Fraud Arrest:

The LA Times reports:

The owner of a firm that the California Republican Party hired to register tens of thousands of voters this year was arrested in Ontario late last night on suspicion of voter registration fraud.

State and local investigators allege that Mark Jacoby fraudulently registered himself to vote at a childhood California address where he no longer lives so he would appear to meet the legal requirement that signature gatherers be eligible to vote in California.

Jacoby's arrest by state investigators and the Ontario Police Department comes after dozens of voters said they were duped into registering as Republicans by his firm, Young Political Majors, or YPM. The voters said YPM tricked them by saying they were signing a petition to toughen penalties against child molesters.

One thing that confuses me about this story is that the U.S. Court of Appeals struck down Arizona's residency requirements for circulators of candidate nominating petitions this past summer in Nader v. Brewer. So am I wrong in thinking Mr. Jacoby may have fraudulently registered at a California address in order to comply with a law that could not have been enforced against him in the first place?

Related Posts (on one page):

  1. Voter Registration Fraud Arrest:
  2. Republicans Commit Registration Fraud Too:

The Powell Endorsement & The Courts:

Colin Powell endorsed Senator Barack Obama today on Meet the Press. I missed the interview, but I found it notable that Powell said: "I would have difficulty with two more conservative appointments to the Supreme Court, but that's what we'd be looking at in a McCain administration." This was among the few concrete policy-related reasons Powell gave for his decision, which is particularly interesting given Powell's disagreement with Obama on many foreign policy issues.


Open Thread Time: What's on your mind?

Sunday Song Lyric: Columbus Day was last Monday. We had classes anyway so I forgot (though not getting mail was a clue). There have been a few good songs about Christopher Columbus, including the classic Tin Pan Alley-era tune with lyrics by Andy Razaf and music by Leon Berry (though sometimes credited to Andy Kirk) that was popularized by Duke Ellington.
Mister Christopher Columbus
Sailed the sea without a compass
When his men began a rumpus
Up spoke, Christopher Columbus

There is land somewhere
Until we get there,
We will not go wrong,
If we sing, "swing a song"

Since the world is round,
We'll be safe and sound
Til our goal is found,
We'll just keep rhythm bound
The full lyrics are here.

Is Obama a Sure Thing?:

He's certainly the favorite, but I think it's odd that so many commentators seem to think the race is over. In 2000, with the same number of days to go in the presidential contest, four polls were published, giving George Bush a 4.5% lead over Al Gore. As we know, Gore wound up winning the popular vote, and came within a few hundred votes in Florida of winning the presidency. Over at, the two polls published so far today give Obama a 4.5% lead on average, and the average of all recent polls gives him a 5% lead.

Again, Obama is obviously the favorite. But the Democrats would be wise to hold off on all the talk of who is going to be in Obama's cabinet, the special session they will hold in Congress in November to start working on the Obama agenda, etc., and focus on winning the election.


Outsiders Voting in Ohio:

A small house on the east side of Columbus, Ohio is getting lots of attention. It houses several activists with Vote from Home, a new group formed to encourage voter registration and early voting in Ohio. The attention, and some controversy, arises from the fact that several of the home's temporary residents registered to vote by absentee in Ohio, despite the lack of any meaningful connection to the state. The Columbus Dispatch investigated, and found that several residents have already voted. While some are registered to vote in other jurisdictions, the Dispatch has found no evidence any of the individuals have voted twice. There is some question whether all have satisfied Ohio's residency requirements.

"A group of us came up with the idea at Oxford. It's an opportunity for a new get-out-the-vote effort," said Marc Gustafson, a 31-year-old New York City resident who is a Marshall Scholar at the University of Oxford in England. . . .

They formed a political action committee, based in New York, called Vote from Home, and registered it with the Federal Election Commission. They then raised more than $52,000, mostly in donations from friends and relatives, according to federal records. . . .

By the end of July, they began trickling into Ohio. Some went to Cincinnati; others moved into the Brownlee Avenue house owned by Joel E. Speyer, an Ohio native who moved to New York in 2004. . . .

Group members said they were motivated to come to Ohio because of problems with long voting lines in traditionally Democratic precincts in 2004.

With subsequent changes in Ohio law that allowed early voting, the group wanted to get as many people as possible to cast a vote in Ohio. . . .

In August, they said their stay in Ohio would be temporary. Many said they planned to leave the state in October. Some had to return to school in England by Oct. 12. Others needed to get back to their jobs in other states.


Closed-End Funds Update:

I've been blogging about the crazy action in closed-end funds, mutual funds that sell on the exchanges and have a fixed number of shares. Because the funds are thinly traded and held mostly by individual investors, they can sell at large discounts or premiums to their underlying net asset value, depending on investors' optimism or pessimism.

In normal times, the average closed-end funds sells at about a 5% discount. On Oct. 10, the median fund was selling at an almost 30% discount, a historically unprecedented discount, and evidence that individual investors were in a selling panic. Some individual state municipal bond funds fell to greater than a 50% discount during the day on Friday.

A week later, with the markets calmer, less that 15% of CEFs are selling at even a 20% discount. Some of the state municipal bond funds that had completely crashed are now selling at premiums (see BPS, for example).

The discounts are still higher than usual, as one might expect given the turmoil on Wall Street. (Also, CEFs in any event tend to sell at relatively high discounts from October to December, and their discounts narrow, predictably, in January.) But absent a further shock to the system (such as a major international bank failing, or a major terrorist attack) the action in closed-end funds suggests that irrational pessimism reached a zenith on October 10th, and that is very likely to wind up being the market bottom.