Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period.
The financial crisis and especially the recent decline in oil prices have hit the Russian economy hard, and have shaken previously strong popular support for Vladimir Putin's regime. In late January, there were widespread anti-government demonstrations organized by a variety of opposition groups. Russia's growth during the 8 years of Putin's rule has been overwhelmingly based on revenues from oil exports, which boomed as oil prices rose. Now, however, the game seems to be up. Although oil prices might go up again, they are unlikely to regain their pre-recession levels anytime soon.
Putin's popularity has suffered enough that even Russian President Dmitry Medvedev - whom Putin handpicked for the post - is beginning to distance himself from his longtime patron - criticizing Putin's economic policies and tabling a Putin-sponsored law that would have criminalized most political dissent as "treason."
Until now, both Russian and foreign opinion has mostly seen Medvedev as a lackey that Putin installed in the presidency last year so as to circumvent term limits. If this particular rat is considering jumping ship, that means the vessel in question might really be in danger of sinking.
Russia is at a crossroads. There are basically two choices. Either it becomes more authoritarian, with state capitalism and protectionism — [and] then it has no need for cooperation with the European Union. Or we see a political and economic liberalization, which is the opposite direction.
I suspect that Aslund is right. It's possible that the regime will now be forced to liberalize, and Medvedev has been making a few gestures in that direction. Liberal democratic opposition leaders, such as Garry Kasparov, might be able to turn the crisis to their advantage.
The National Surveillance State: A Response to Balkin:
I have just posted a 5-page response to a recent essay by Jack Balkin on what Balkin calls "The National Surveillance State." My response, forthcoming in the Minnesota Law Review, is titled The National Surveillance State: A Response to Balkin.
The abstract:
In his recent Lockhart lecture, published in this journal as "The Constitution in the National Surveillance State," Jack Balkin warns of a "new form of governance" that he calls "The National Surveillance State." This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.
The NYT "Room for Debate" blog has a set of essays on the "Buy America" provisions in the stimulus bill. There's some good stuff in there, including the comments by economists Gary Clyde Hufbauer and Anne Kreuger noting that the provisions will cost more American jobs than they will save. The contribution by my Senator, Sherrod Brown, on the other hand, is embarrassing. He thinks it's a good idea to pay up to 25 percent more for, say, infrastructure projects to comply with a "Buy American" provision. So, in the case of a planned bridge replacement in Cleveland, it could add some $100 million (or more) to the cost of the project, which will mean fewer projects go forward. Yet somehow Senator Brown thinks this is in America's "national interest."
Lysander Spooner's Originalism:
Readers of this blog know I have a thing for Lysander Spooner. This traces back to my reading No Treason: The Constitution of No Authority while an undergraduate at Northwestern. Much later as a law professor, I became acquainted with his other works. Indeed, it was his book, The Unconstitutionality of Slavery, that started my movement towards originalism. This movement eventually culminated in Restoring the Lost Constitution: The Presumption of Liberty, which I dedicated to James Madison and Lysander Spooner. Now Helen Knowles, a political science professor at SUNY Oswego and an emerging Spooner scholar, has produced a new work on Spooner's debate with Wendell Phillips over the meaning of the Constitution. Her paper Securing the 'Blessings of Liberty' for All: Lysander Spooner's Originalism can be downloaded from SSRN. Here is the abstract:
On January 1, 1808, legislation made it illegal to import slaves into the United States; eighteen days later, in Athol, Massachusetts, Lysander Spooner was born. In terms of their influence on the abolition of slavery, only the first of these events has gained widespread recognition. The importance of Spooner's reading of the U.S. Constitution as a document that did not sanction slavery has been overlooked; his abolitionist work continues to be disparaged as the incoherent ramblings of an unserious polemicist. As this essay demonstrates, this conclusion about Spooner's mid-nineteenth century work, The Unconstitutionality of Slavery, is unfortunate, because his observations about the relationship between law and individual liberty are timeless.
Drawing on his writings (including a previously unpublished manuscript) and voluminous correspondence, with supporting material from abolitionist newspapers and periodicals, I focus on Spooner's contribution to a mid-1840s debate about constitutional interpretation. Spooner's natural-rights based reading of the Constitution's original meaning never matched the popularity of fellow abolitionist Wendell Phillips's emphasis on the Framers' original pro-slavery intentions. Phillips won the day with conclusions that seemed to vindicate the Garrisonian condemnation of the Constitution as a covenant with death, and an agreement with hell. However, Phillips's conclusions about the law were underpinned by a misleading emphasis on political history. They could not match the fiercely logical, and legal emphasis of Spooner's conclusions. In this respect, only Spooner offered an approach faithful to the Constitution's guarantee to protect the Blessings of Liberty.
I am now in the middle of writing a new book on the original meaning of the 9th & 14th Amendments, and the proper role of the courts in using these Amendments to protect liberty. As part of my research on the 14th Amendment, I have been reading other abolitionist constitutional theorists including William Goodell, Theodore Dwight Weld, James Birney, Joel Tiffany, and Frederick Douglass. All but Douglass were lawyers. I am finding that Spooner was influential on them all and that, taken as a whole, their works are both more persuasive and sophisticated than they are typically credited. Indeed, I find them more careful and powerfully reasoned than most of today's constitutional analysis. Not only that, but there is a direct connection--via John Bingham--between the text of the Fourteenth Amendment and these abolitionist writers' arguments concerning (a) U.S. citizenship, (b) the Privileges and Immunities Clause of Article IV, (c) the Due Process Clause of the Fifth Amendment, and (d) the duty of protection that every government owes those from whom it demands obedience. These four lines of argument led to the four working parts of Section 1 of the Fourteenth Amendment, and helps explain their original public meaning. This connection was first described by Jacobus tenBroek in his masterly little book, Equal Under Law, which regrettably is out of print.
Via BLT, comes news that the U.S. Court of Federal Claims has just released three special master reports examining claims of a link between vaccines and autism. Each report examines an alleged case in which vaccination allegedly caused autism, and each finds the allegations wanting. different theory of causation, and each finds the theory wanting. More to follow.
To say that the Israeli success reduced support for Hamas is not the same thing as saying that it caused Palestinians to take a more favorable view of Israel. The same poll shows that 54% blame Israel for the recent hostilities, with only 15% blaming Hamas (though these results too may be affected by lying due to fear of retaliation). But the Israelis don't need Palestinians to like them. Their more immediate need is to persuade Palestinians to stop supporting terrorism.
It is not surprising that military setbacks have reduced Hamas' popular support. We can see similar patterns throughout history. German support for Nazism collapsed because of Hitler's massive military defeat. In the Arab world, previously strong support for Egyptian dictator Gamal Abdel Nasser's ideology of pan-Arabism plummeted after his defeat in the Six Day War. Here in the United States, support for neoconservative hawkishness declined greatly as a result of setbacks in the occupation of Iraq. Most people are highly biased in their evaluation of political information, and tend to reject anything that cuts against their preexisting beliefs. But clear military defeat is such an obvious setback that all but the most committed ideologues find it difficult to ignore or explain away.
The fall in Hamas' popular support does not by itself justify Israel's recent policies. But it does provide an important data point in the longstanding debate over the impact of military action on public support for terrorists. It turns out that you can cause that support to drop - if you win.
NOTE: I know from previous experience that comments about issues related to the Israeli-Palestinian conflict produce a very high ratio of heat relative to light. As per my usual practice, I'm not going to aggressively police the comments. But I would suggest that we will have a better discussion if commenters focus on the specific issue raised in the post rather than on the broader rights and wrongs of the conflict. I highly doubt that we can say anything about the latter that hasn't already been repeatedly stated elsewhere.
Unintentional Seizures under the Fourth Amendment:
Last week, the Ninth Circuit handed down an amended opinion in United States v. Al Nasser that raises a fascinating and rather difficult Fourth Amendment question: Is a person "seized" for Fourth Amendment purposes if he reasonably thinks an officer is trying to stop him, and he stops in response, but the officer is actually trying to stop someone else? In the case, officers had pulled over some other cars for violations, and had their lights on, and the driver of a car apparently thought he was being pulled over, too, even though he wasn't. Here's the question: Assuming, for the sake of argument, that the driver reasonably thought that he was being stopped, and that he stopped as a result of it, was the stop a seizure if no officer actually intended to stop that car?
The Ninth Circuit concludes, in an opinion by Judge Kleinfeld (joined by Trott and R. Smith), that no seizure occurs in such a situation. I tend to think that is correct, under Brower v. City of Inyo, but it's actually a pretty difficult question. Unfortunately, I don't have time to blog all the complexities, but I did want to flag the opinion for readers interested in such a fun Fourth Amendment issue.
Thanks to Lee Rudofsky for the tip.
UPDATE: Some commenters think that the decision is wrong under Brendlin, but remember that in Brendlin the officer knew he was bringing that car and all of its contents to a stop and did bring the car to a stop. Also, note that if the result in this case is wrong, then an officer presumably violates the Fourth Amendment when he turns on his siren in traffic and it's not clear who he is stopping. If anyone stops out of reasonable confusion over whether he is the one the officer is trying to pull over, even if only temporarily, then the Fourth Amendment rights of the confused driver and all of his passengers are violated based on the misunderstanding. That seems like an odd result to me -- not impossible, but odd.
General Guide To Blogging, #128:
In a moderated comment thread, there is a 50% chance that a commenter who had an uncivil comment deleted will accuse the moderator of censorship and question the moderator's commitment to free speech. (Because if the First Amendment means anything, it's the right to do what you want with someone else's private property without the property owner being able to clean up your mess.)
As pretty much everyone is surely aware by now, the Associated Press has claimed that the iconic "HOPE" image created by Shepard Fairey for the Obama campaign, and featured on everything from posters to t-shirts to mugs to buttons, is an infringement of the copyright in an AP photograph of Obama, taken by Mannie Garcia.
Putting aside questions of whether the AP showed particularly good judgment in threatening Fairey with an infringement suit (it did not, imho), on the merits the AP claim looks very weak to me, on two grounds:
1. It's not an infringement of their copyright in the photo. Fairey admits that he copied from the photograph in making his image - but copying does not necessarily imply copyright infringement. You're allowed to copy things from others, if the things that you copy are not protected by copyright. Garcia's photograph is, certainly, a work protected by copyright — but only its "original" elements are protected. The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.
2. Even if Fairey copied copyrightable elements of the photograph, he's got a very, very strong fair use defense. One critical part of the fair use inquiry is: did the defendant have a "transformative purpose" in using the copyrighted original. That doesn't mean "did the defendant transform the original" - it means "did the defendant have a purpose significant different that the purpose for which the original was created. The AP photo was created for a purpose — as a news photograph. Fairely's purpose was completely different — he's making a political statement (duh!), and attempting to get voters to believe in the message of "hope," and all the rest. Courts have, in recent years, indicated that this factor is central to the fair use defense, and I think it gives Fairey a very strong case.
Prof. Jane Ginsburg, a prominent copyright law prof at Columbia Law School, is quoted here saying that she "questioned whether Fairey has a valid fair-use claim and says that he should have at least credited the AP.
"What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage," Ginsburg said. "I think that's pretty radical."
It is pretty radical - but it's also correct. Anybody's photograph is fair game — that's precisely what "fair use" is all about. "It is not infringement of copyright to make fair use of a copyrighted work," in the words of the Copyright Act — any copyrighted work, of any kind, anywhere, at any time, is fair game to be used, if it is used "fairly." And I don't think the failure to credit the AP has anything to do with that analysis — maybe it would have been nice for Fairey to give Garcia credit, but I do not believe that the law of fair use makes that a relevant consideration.
And finally, in the "be careful what you ask for, it might come back to bite you in the ass" department: now it turns out that the AP, having started this ruckus, might not even own the copyright in the photograph at all. Garcia is apparently claiming that he, and not the AP, is the copyright owner, because (a) he was not an employee of the AP when he took the photo (which would give the AP the copyright under the "work for hire" doctrine", and (b) that his contract with the AP does not transfer his copyright to them. So the end product of all this may well be that the AP has no claim against Fairey, and no copyright at all in the photo.
[Update -- Randy Picker, over at the U Chicago Law School faculty blog, has a somewhat more extensive analysis reaching basically the same conclusion as I do above - DavidP]
because (among other things) "An examination of the entire publication compels the Court to conclude that a reasonable person would determine that the book Hot Chicks With Douchebags is intended to be satirical humor. While it may in some eyes be vulgar and tasteless, it definitely is not an assertion of fact that anyone would take seriously." So says a New Jersey Superior Court opinion in Gorzelany v. Simon & Schuster. What, Johns Hopkins doesn't have a "Department of Scrotology"?
Congratulations to Judge Menelaos Toskos, for getting this right, and for being named Menelaos. Greeks get to have the coolest names. (OK, "Eugene" is originally a Greek name, too, and it's not at all cool, at least in the U.S. But Menelaos is hard to beat.)
Initiated in 2007, the Jackson Fellowship allows recent law school graduates an opportunity to work closely with FIRE's President and Director of Legal and Public Advocacy, substantively engaging issues and cases that represent the cutting edge of First Amendment jurisprudence and higher education law. Beginning in September, Jackson Fellows will work from FIRE's New York office for two years. More information about the Fellowship, including instructions on how to apply, is available here. Applications will be reviewed on a rolling basis.
Our inaugural Jackson Fellows, Azhar Majeed and Kelly Sarabyn of the University of Michigan Law School and Yale Law School respectively, have produced several pieces of original legal scholarship on subjects related to FIRE's work during their term as Fellows. Azhar has two articles slated for publication this spring: "Learning from DeJohn v. Temple University: The Misapplication of Peer Harassment Law on University Campuses and the Loss of Student Speech Rights" in the Journal of College and University Law and "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes" in the Georgetown Journal of Law & Public Policy. Kelly also has a piece scheduled to be published this month: "The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students' First Amendment Rights," forthcoming in the Texas Journal on Civil Liberties and Civil Rights.
I only rarely post such items on the blog, but in the case of FIRE -- whose work I have long admired -- I thought I'd make an exception, especially since it's likely that quite a few of our readers would find this to be an excellent opportunity.
General Guide to Blogging, #127:
In a moderated comment thread, there is a 50% chance that any commenter who is given a warning for being uncivil will argue that they were not uncivil, demand an explanation of what exactly they did that was deemed uncivil, and seek an explanation of why others have not been warned when they did more or less the same thing.
Seventh Circuit Affirms Dismissal of John Lott's Libel Lawsuit Against Steven Levitt:
The opinion is relatively short, and quite readable. Note that the Seventh Circuit is applying Illinois law, which is relatively defendant friendly in this class of cases: "a statement that is reasonably capable of an innocent construction is not [in the absence of evidence of specific losses] defamatory."
Using an academic definition of “replicate,” Lott maintains that the passage [which said that "When other scholars have tried to replicate his results, they found that right-to-carry laws simply don’t bring down crime"] means that others repeated, to a tee, his technical analysis but were unable to duplicate his results, suggesting that he either faked his data or performed his analysis incompetently.
In [the] context [of a book, Freakonomics, aimed at the general public], it is reasonable to read “replicate” in more generic terms. That is, the sentence could mean that scholars tried to reach the same conclusion as Lott, using different models, data, and assumptions, but could not do so. This reading does not imply that Lott falsified his results or was incompetent; instead, it suggests only that scholars have disagreed with Lott’s findings about the controversial relationship between guns and crime. By concluding that this more generic definition of “replicate” is reasonable, we are not assuming that the reader is a simpleton. After all, econometrics is far from conventional wisdom. We are, however, taking into account the context of the statement and acknowledging that the natural and obvious meaning of “replicate” can lie outside the realm of academia for this broadly appealing book.
Respondent attempted to discredit Dr. Pike by claiming her definition of “gambler’s fallacy” was incorrect. Respondent relies on a definition of “gambler’s fallacy” he obtained from Wikipedia. Respondent did not call any witness, or expert witness, to counter Dr. Pike’s conclusions. Respondent’s reliance on a definition of “gambler’s fallacy” found in Wikipedia[18] is not persuasive. Dr. Pike and Mr. Nicely, a second expert witness whose testimony and opinions are discussed in greater detail infra, credibly explained that there is a difference in the definition of “gambler’s fallacy” depending on the field of study -- e.g., psychology versus mathematics. We find Dr. Pike to be credible and rely on her expert opinion.
[Footnote 18:] Although we conclude that the information respondent obtained from Wikipedia was not wholly reliable and not persuasive in the instant case, we make no findings regarding the reliability, persuasiveness, or use of Wikipedia in general.
Marc Ambinder has an interesting post in which unnamed Obama Administration officials and national security law experts explain the Administration's continued reliance on the state secrets privilege in the Mohamed v. Jeppesen Dataplan case.
Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.
"If you decide today precipitously to waive this privilege, you can't get it back,
an administration official said. "If you decide to assert it, you can always retract it in the future." . . .
The officials who spoke would not discuss the particulars of the case. They did agree to discuss the various cross-pressures that the administration finds itself facing.
One is that many Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks. . . .
The state secrets privilege has been bureaucratically calcified to an extent that worries many experts, with the Department of Justice making the decision about what's harmful more and more often, and the CIA and other intelligence agencies having less of a say. There is evidence that the privilege has always been used in this way, but that the Bush Administration's invocations were subject to more (legitimate) watchdogging from the press and outside interests. Some Obama administration officials believe that the privilege's assertion is legitimate, but that the Supreme Court, in the case which gave rise to the privilege, was much too deferential to the government.
Lucy, Lady Duff Gordon:
Most first year law students still study the case of Wood v. Lucy, Lady Duff-Gordon in which they read Cardozo's sarcastic reference how she "styles herself a 'creator of fashions.'" In fact, Cardozo notwithstanding, Lucy was a highly influential and innovative fashion designer. Wikipedia has a nice biography of Lucy here. Professor Allen Kamp of the John Marshall Law School has located this photograph of a coat, c1923, silk brocade and velvet, designed by the House of Lucille, Lady Duff Gordon's fashion company. In addition to being famous in her day as a designer, Lucy and her husband Cosmo Duff-Gordon were survivors of the sinking of the Titanic, and she makes a brief appearance as a character in the James Cameron film. Here is an interesting composite photo combining Lucy and Rosalind Ayres, portraying her in the film.
Britain Refuses to Allow Dutch MP Geert Wilders To Enter:
Brussels Journal quotes this letter to Wilders stating that he is excluded from Britain:
Dear Mr Wilders
The purpose of this letter is to inform you that the Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society. The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere, would threaten community harmony and therefore public security in the UK.
You are advised that should you travel to the UK and seek admission an Immigration Officer will take into account the Secretary of State's view. If, in accordance with regulation 21 of the immigration (European Economic Area) Regulations 2006, the Immigration Officer is statisfied that your exclusion is justified on grounds of public policy and/or public security, you will be refused admission to the UK under regulation 19. You would have a right of appeal against any refusal of admission, exercisable from outside the UK.
Yours sincerely,
Irving N. Jones
On behalf of the Secretary of State for the Home Department
There's more at Brussels Journal about the story, which has an internal British Parliamentary political dimension.
I definitely do not support the British decision, and I would oppose any such decision by the U.S. government (not that I know of any in the wind). But I should note, for those who are interested in comparing European law and American law on free speech (as I sometimes do), that the American precedent on this question, Kleindienst v. Mandel (1972), generally allows the U.S. government to exclude speakers based on their political views.
Reinhardt and Kozinski Duke It Out in United States v. Cruz:
If you're interested in some engaging opinion-writing, check out the majority and dissenting opinions in United States v. Cruz, a criminal case on whether the jury had sufficient evidence to conclude that the defendant was an "Indian" for the purposes of a federal criminal statute. Judge Reinhardt (joined by Judge Thomas) concludes that it was plain error to conclude that there was sufficient evidence, and thus the verdict must be overturrned. Judge Kozinski blows a gasket in dissent, ending with this paragraph:
The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction.
Judge Kozinski's dissent is classic Kozinski, although if a few of the lines had been left as a VC comment, I would have deleted it and warned commenter "EZRider" to be civil or not comment at all. ("Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes. . . " Sheesh.)
In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:
The Italian case relates to a three-minute movie uploaded to Google Video's Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn't return calls for this article, argue the video should never have been allowed to be uploaded in the first place.
Google concedes the content caused offense. In a statement the company says: "As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished."
There's a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It's an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.
The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we've ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd: to summarize (see chapter 11 of the book for more detail): Italy can legitimately assert jurisdiction over Google if Google's conduct is having "significant effects" within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google's perspective, and the question "With what law does Google have an obligation to comply?", the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel. In my book, I call this "Jurisdictional Whack-a-Mole."
"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.
That's a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.
This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I'm hoping the book's website becomes a focus for some discussion about all this, because I'm pretty certain that we could use more discussion about it.
[with thanks to Paul B. Simon for passing along the links
An interesting case just decided today, in which it seems that the lawyers would have been wise not to appeal an erroneous district court decision -- and in which the lawyers' apparent error risked costing the clients many years in jail (though a Supreme Court case decided after the appeal was filed ended up precluding that result). I should note that I have not investigated the matter myself; but I'm inclined to trust Judge Reinhardt's analysis.
David Luban has an interesting commentary on the Obama Administration's decision to continue the assertion of state secrets privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:
The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.
This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?
The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. . . .
. . . Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.
Have Gun-Will Travel Returns for Free:
CBS has just made available for free viewing on its website whole seasons of some of its "TV Classics" series. Beauty and the Beast, Beverly Hills 90210, Dynasty, Family Ties, Have Gun-Will Travel, Hawaii Five-0, The Love Boat, MacGyver, Melrose Place, Perry Mason, Star Trek: The Original Series, The Twilight Zone, and Twin Peaks.
I am particularly pleased to see the first season of Have Gun-Will Travel included. HGWT was one of the most intelligently written western series. Because it has not been rerun in many years, it is probably unknown to most readers.
The series features the excellent actor Richard Boone, as a hired gun who, like several characters of the era, has two lives. One as a silk smoking jacket resident of a posh San Francisco hotel, the other as the black clad Paladin ("a knight without armor in a savage land") who takes a substantial fee for his services. The back story on Paladin is left murky. What is clear is that he is highly educated and well read, a war veteran, and product of a military academy. More info on the series is here.
One of the distinctive features of the series is its opening credits, which always begin with a close up on his holstered gun. Paladin's hand then points the gun directly at the camera and Boone speaks one of the lines from the forthcoming episode. For example, at the beginning of episode 9, "Show of Force," he says:
"I could have taken that letter when I wanted it; even while you held a gun on me. Put the gun away counselor. What good is proof to a dead lawyer."
The series is well worth checking out, although of course it is of inconsistent quality. (The episodes are on the website in reverse order.) My major disappointment was that this release of "classic" series does not include The Defenders, the CBS series about a father-son New York criminal defense firm that first made me want to be a lawyer, and a criminal lawyer at that. The couple episodes I have seen on video tape--a gift from students--still hold up quite well. There seems to be some sort of rights issue with The Defenders. I hope one day it is sorted out.
Living Without Lederman:
Apropos the developments mentioned below in the Ninth Circuit state secrets litigation, commenter Anderson asks a good question: How are we supposed to follow developments in detention and torture law without Marty Lederman? His decision to take a vacation from the rigors of academia to enjoy a cushy government job left a serious hole in the blawgosphere on these issues.
The Obama Administration, Middle Ground, and the State Secrets Doctrine:
Jonathan links below to the news coverage of the Ninth Circuit oral argument at which Doug Letter, an attorney for DOJ, announced that the Obama Administration had elected not to change its position on the state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an "extraordinary rendition" case.
It's always hard to know what's going on in a new Administration. But my initial reaction is that I'm not particularly surprised. Here's my thinking. Much of the leadership of the Obama Justice Department served as officials in the Clinton Justice Department. But the Clinton Justice Department wasn't necessarily modest when it came to claims of executive privilege. If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case. From this perspective, the goal, as reflected in DOJ's announcement today that it will review every state secrets case, should be a return to a case-by-case evaluation of when the state secrets doctrine is appropriate.
If the Mohamed litigation had arisen in the Clinton years, I would have expected the Clinton DOJ to assert the state secrets privilege. Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult. If you're in a position of representing the executive branch, that's a very weighty concern even if you condemn what happened under the previous administration.
I should add that this isn't necessarily a defense of the Obama Administration. Some readers take the principled view that the state secrets privilege either shouldn't exist or should be dramaticaly limited. If you take that view, then the Obama Administration's position remains deeply troubling. My point is only that I think the folks running DOJ are cut from a more institutional cloth: To borrow from Bill Clinton in another setting, they likely see themselves trying, for better or worse, to take the state secrets doctrine and "mend it, not end it." That's my guess, at least.
Judges Reinhardt, Henderson and Karlton Indicate Plan to Order California to Release About 25% of Its Inmates:
Howard has the links to this very interesting news development here. The tentative order of the three judge panel (all Carter appointees, as it happens) is here.
This litigation is new to me, but it appears to have been going for a long time. The gist of the order is that California state prisons are terribly overcrowded, and the three judges have concluded that the only realistic way to avoid unconstitutional prison conditions is to force the state to agree to an order substantially decreasing the number of people in the California state prison system: "[G]iven the evidence presented to this Court, . . an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted."
Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion. I hope someone who has been following this litigation and understands the Prison Litigation Reform Act can weigh in and provide some context and more informed opinion.
Is Stimulus a Trojan Horse for Health Care Reform?
Are radical reforms of the private health care system buried in the stimulus bill? Betsy McCaughey, whose 1994 cover story in The New Republic helped sink the Clinton Administration's health care reforms, thinks so. In an opinion piece for Bloomberg, she writes:
The bill’s health rules will affect “every individual in the United States.” Your medical treatments will be tracked electronically by a federal system. Having electronic medical records at your fingertips, easily transferred to a hospital, is beneficial. It will help avoid duplicate tests and errors.
But the bill goes further. One new bureaucracy, the National Coordinator of Health Information Technology, will monitor treatments to make sure your doctor is doing what the federal government deems appropriate and cost effective. The goal is to reduce costs and “guide” your doctor’s decisions. These provisions in the stimulus bill are virtually identical to what Daschle prescribed in his 2008 book, Critical: What We Can Do About the Health-Care Crisis. According to Daschle, doctors have to give up autonomy and “learn to operate less like solo practitioners.” . . .
Hiding health legislation in a stimulus bill is intentional. Daschle supported the Clinton administration’s health-care overhaul in 1994, and attributed its failure to debate and delay. A year ago, Daschle wrote that the next president should act quickly before critics mount an opposition. “If that means attaching a health-care plan to the federal budget, so be it,” he said. “The issue is too important to be stalled by Senate protocol.”
I recognize McCaughey's 1994 analysis is disputed, and it is entirely possible she is mis-reading the language of the stimulus bill too. At the same time, it would not surprise me were all sorts of mischief buried deep within the massive bill. Hence my question: Is she correct in her assessment of the health care provisions of the stimulus? I would be particularly interested in the views of my co-blogger David Hyman (who's probably forgotten more about health care policy than I'll ever know) and others who follow this issue more closely than I do.
The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.
The case involves five men who claim to have been victims of extraordinary rendition — including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.
UPDATE: The NYTreports on today's oral argument before the U.S. Court of Appeals for the Ninth Circuit:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Last week, Acting Solicitor General Edwin Kneedler filed a motion informing the Supreme Court that the federal government is no longer seeking review of New Jersey v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit invalidated the Bush Administration's controversial mercury rule that sought to create a cap-and-trade system for mercury emissions from coal-fired utilities. Instead, Kneedler informed the justices, the Obama Administration would develop new regulations in accord with the appeals court ruling.
SCOTUSBlog notes that this is a "fairly radical policy reversal for the EPA." That it is, but not because it changes the ultimate outcome. As I noted here, the Bush EPA's mercury rule was quite flawed, and almost certainly illegal under the Clean Air Act. Thus even had the Court accepted cert in the case, a victory for EPA seemed quite unlikely, and the Obama Administration would have to develop new rules. The justices could still take the case, as an industry-backed cert petition is still pending for Friday's conference, but the odds this case will be accepted would seem to have dropped quite dramatically. So the primary effect of this decision is to accelerate the timetable for developing new mercury rules.
Meanwhile, the Bush Administration finally scored a victory (albeit somewhat belatedly) in a lower profile Clean Air Act case, South Coast Air Quality Management District v. EPA. On Friday, the D.C. Circuit rejected an environmentalist challenge to the EPA's failure to develop more stringent emission standards for large marine diesel engines in a more timely fashion. Given the number of times federal courts of appeals have struck down Bush Administration air rules, this seems significant, even if the case is relatively minor. More on the decision here.
UPDATE: As Law Dork Chris Geidner notes, the EPA's reversal is welcome news to some states -- those that opposed the Bush EPA mercury rule -- but not to others.
Michael Petrelis has some interesting reporting and links on the opposition to the anti-SSM amendment that was defeated in the Wyoming legislature on Friday. It included an openly lesbian House member who says she's "too lazy to be closeted" and two heterosexual Mormon representatives who think their church is making a big mistake by backing such amendments. It also included 16 Republicans in a GOP-dominated body.
In comments, rather than rehash the arguments over SSM, I'd be curious to hear from readers familiar with Wyoming politics about why they think such an amendment has not made it through the state legislature.
Every person has worth as an individual. Every person is entitled to dignity and respect, regardless of class, color, disability, gender, nationality, race, or sexual orientation. Thoughts and acts of prejudice have no place in the UVA Law community.
Therefore, we pledge...
To treat all people with dignity and respect, to discourage others' prejudice in all its forms, and to strive to maintain a climate for work and learning based on mutual respect and understanding;
And from this day forward,
Knowing that both the UVA Law community and the world will be a better place because of our efforts, we will incorporate this pledge into our daily lives.
Some, I suppose, will find it threatening; I find it vapid. At some very high level of generality, almost every decent person agrees with the notion that "Every person is entitled to dignity and respect, regardless of class, color, disability, gender, nationality, race, or sexual orientation." For instance, even many people who believe that homosexuality is wrong believe that people who are attracted to members of the same sex are entitled to dignity and respect — they just think that those people shouldn't engage in homosexual conduct.
The trouble is that the dispute is chiefly about what constitutes "prejudice," and what the obligation "[t]o treat all people with dignity and respect" means. If "prejudice in all its forms" means irrational hostility, then again this is banal to the point of irrelevance: Few people support irrational hostility. If "prejudice in all its forms" means all differences in treatment, then few people would condemn such a broad category of behavior; to do so, they'd have to oppose all race- and sex-based affirmative action, all immigration restrictions (since those discriminate based on not being an American national), all exclusions — no matter how justified by the demands of the task — based on disability, and so on. The same would be true if "prejudice in all its forms" covers all generalizations and preconceptions based on the attributes, however tentative. How many rational people would (or should) have no preconceptions about the possible dangerousness of a passerby on a dark street based on whether the passerby is a man or a woman? How many rational people would (or should) have no preconceptions about whether a blind person should drive a school bus? And these are just some of the most obvious examples.
Of course, I suspect that "prejudice in all its forms" means behavior that right-thinking people treat as prejudice. We can guess what the drafters' notion of right-thinking might be, though I suspect that even the drafters, however ideologically similar to each other they might be, wouldn't completely agree on that. And what do the signers mean by that? Beats me.
So this is all a long way of saying that the diversity pledge strikes me as quite empty of any intellectual value — it's a form of political posturing rather than serious engagement with the actual controversies and problems that modern law schools face. And I suspect that it's also quite empty of any political or community norm-setting value, partly for the reasons I mention above and partly because it would so clearly be understood as political posturing.
By the way, I should note that many of these criticisms can also be levied at the Pledge of Allegiance, which likewise lacks deep intellectual meaning. But if the Pledge works, it works precisely because it is aimed at conditioning the minds of small children, and because its message is understood to be empty of specific commitments that would be substantially controversial in modern American society, which may help it function as a broadly uniting national ritual. ("Under God" is probably the most controversial part, and that only mildly so in modern America; and my sense is even many irreligious people deal with the phrase simply by not saying it, usually with the understanding that the exclusion doesn't affect the general meaning.) I would have thought that these defenses would not be available as to a law school "diversity" pledge.
1. If it has ex ante effects (that is, creditors expect that in any future financial crisis, the government will do the same), then it will help reinflate a credit and housing bubble. Loan servicers, creditors, and homeowners can divide ex ante the future government bounty. By contrast, loan moratoria, Chapter 13 reform, and the like, should reduce the incentive to extend credit (for better or worse).
First, we think you are criticizing TARP, not necessarily our proposal. TARP could generate ex ante effects of this sort, if you believe (which we do not) that the government is likely to spend this kind of money again. Also, we don't need to rely on TARP. Our original draft relied on an industry tax, but this would likely cause further damage to the industry when it is already receiving government help. We settled on TARP funds because we want a plan that can be implemented quickly and want to limit the waste of these funds on other proposals such as Hope for Homeowners and the FDIC plan proposed by Sheila Bair.
Second, loan moratoria would only prolong the current crisis; the last thing we want to do right now is restrict the supply of credit.
Third, if you want to restrict lending, we don’t need Chapter 13 reform. Given recent experience, future lenders will be naturally more cautious in offering credit, with or without changes to bankruptcy law.
Fourth, our proposal corrects a well-defined market failure (badly-written servicing contracts) and, by its very nature, is a temporary intervention. Changes to the bankruptcy code would have permanent, unintended consequences.
Put differently, while the ex ante effects of our proposal are highly speculative, the welfare losses from bankruptcy cramdown are real and documented.
2. Mayer et al. criticize the bankruptcy reform proposals for being crude, but their approach is crude as well. Why ten percent capped at $60 per month? Why not lower or higher? The proposal rests on pretty aggressive empirical assumptions about such things as the risk aversion of loan servicers and the likelihood that beneficiaries of renegotiated loans will default. And then there is the question of whether the estimated $9 billion in TARP funds have a better use.
We computed our Incentive Fee to mimic the fee earned by existing servicers who are successfully modifying mortgages. Also, please take a look at our cost-benefit analysis in Appendices 2 and 4 of our proposal. The empirical assumptions may seem aggressive to you, but they are fairly conservative and (importantly) were checked by many market participants.
Our litigation safe harbor should address your risk-aversion concerns.
Finally, your last point (about better uses of TARP) is a critique of TARP, not our proposal. If the $9 billion is going to be spent, how would you spend it?
3. Servicers will have an incentive to renegotiate loans even in cases where the homeowner should lose the house. In some places, the foreclosure value of the house will not necessarily be much lower than the market value—for example, in healthy neighborhoods where a homeowner defaults not because housing prices have plummeted but because the homeowner suffers a permanent loss in income. Here, the house should be foreclosed and resold. Instead, the servicer will renegotiate the loan down to a level the homeowner can afford, thanks to the subsidy from the taxpayer. The proposal makes a fetish of foreclosure: we don’t want to avoid all foreclosures; we want to reduce the incidence of inefficient foreclosure that results in the loss of home value.
Your hypothetical doesn’t track our proposal. Under it, a servicer is incentivized to modify a loan only if modification generates a greater recovery to investors than foreclosure. Your hypothetical is just the opposite: it is a case where modification generates a lower recovery to investors than foreclosure. Your servicer is acting contrary to investor interest and opening itself to lawsuits. This servicer would not be protected by our litigation safe harbor.
Perhaps you are thinking that there will be no lawsuit, because investors and servicers will split the booty. If that kind of coordination were possible, we wouldn't have inefficient foreclosures in the first place. Put differently, your critique is valid only in a world without coordination failures and transaction costs.
4. Servicers will have an incentive to renegotiate loans even in cases where the homeowner would be able to avoid default without a loan renegotiation. Consider people with low or even negative equity who nonetheless want to stay where they are and possess the wherewithal to make loan payments. The loan servicer would be willing offer the homeowner better terms in return for a loan renegotiation that would enable the loan servicer to claim TARP funds. Perhaps, this behavior would be considered bad faith, creating a risk of litigation by MBS holders. But the loan servicer might be able to avoid the litigation by adjusting the loan only minimally—it would still be entitled to the TARP funds and the MBS holders might think that the cost of litigation exceeds the gain from any remedy.
This critique misunderstands our proposal. Our Incentive Fee does not depend on whether a loan is modified or not. A servicer receives an Incentive Fee for _every_ loan being serviced. The Fee continues to be paid until either (1) our program expires or (2) the loan goes to foreclosure. So a servicer will never be tempted to modify a loan when there is no risk of default. That would be a self-inflicted wound: the servicer would be reducing monthly payments by the borrower and, as a result, lowering its own Incentive Fee. Moreover, modification isn’t free. No servicer will invest up to $1,000 to modify a loan that needs no modification.
Our proposal should be contrasted with the FDIC plan, put forth by Sheila Bair. That plan offers $1,000 to servicers for every loan that is modified in a specified way. The FDIC plan, not ours, makes a “fetish of foreclosure,” because it encourages too many modifications.
Note also that our plan avoids micromanaging the modification process. We leave the choice—foreclose, modify a little, modify a lot, or don’t modify at all—in the hands of the servicer, who is incentivized to keep loans ongoing and modify only when modification is better than foreclosure for investors.
In a world where something is going to be done by Congress, we are trying to find an alternative that does the most good at the lowest cost. Doing nothing is not an option, at least from the perspective of Congress, and from our perspective too.
Really?!?
Saturday Night Live's "Really?!?" segment on its Weekend Update is starting to be one of my favorites. Here is SNL's "Really?!?" take on the Michael Phelps story.
Second best line: "Parents, if your kid says 'Michael Phelps smokes pot, why can't I?' say 'you can, right after you win twelve gold medals for your country.'"
The Timing of Supreme Court Retirements:
Over at SCOTUSblog, Tom Goldstein has a long post speculating on how Justice Ginsburg's illness might impact the decisions of other Justices to retire. The gist of the post is that "the retirement decisions of the Justices are inevitably tied together to some extent," and that other Justices might be more inclined to retire sooner if they think that Justice Ginsburg's illness might force her to retire later in the Obama Presidency. Why? Goldstein suggests that "a practice has developed" by which Justices try not to retire the same year "to avoid the complications of multiple Supreme Court confirmation hearings in a single summer." He writes:
Though precise accounts vary, it is understood that Justice O’Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.
Goldstein qualifies his suggestion with a lot of caveats. The most important is that we just don't know what Justices are going to do: These are highly personal decisions of a few specific people who have never done this before, so it's not something you can reason out from first principles. Even so, I'm skeptical about the basic dynamic Goldstein suggests.
First, I'm not sure "a practice has developed" that Justices try to space out retirements. True, it did happen with Justice O'Connor, at least as best we can tell. But I don't recall hearing other examples of it. (If you know of other examples, please let me know and I'll update the post.) Second, even if that is a general preference, timing a retirement around predictions of a colleague's declining health is pretty difficult. We learned that from Justice O'Connor's example: O'Connor resigned July 1, 2005, apparently in order to space out her retirement and Rehnquist's, but Chief Justice Rehnquist ended up passing away just two months later. Third, the Senate recently went through two Supreme Court confirmation hearings a few months apart, and the system worked just fine. Fourth, the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates (assuming no major surprises emerge in the confirmation process). That seems just as true if two vacancies arise at the same time.
For all these reasons, I tend to doubt that Justice Ginsburg's health will have any impact on what the other Justices are thinking in terms of their own retirements. It's certainly possible — as I said, these are highly personal decisions of a few specific people who have never done this before, so anything is possible. But I tend to doubt it.
UPDATE: A reader who follows the Supreme Court very closely tells me that there is in fact evidence that the Justices have talked about this issue in the past, and that there is a general preference for spacing out retirements if possible.
Economist David Friedman has an excellent post on the power of political labeling to influence opinion:
A well chosen name wins an argument by assuming its conclusion. Label cash subsidies to foreign government as "foreign aid" and who can be so hard hearted as to oppose them. Call subsidies to the public schools "aid to education" and you neatly skip over the question of whether additional spending in the public school system results in more education. Label something "pollution" and is no longer necessary to offer evidence that it is bad, since everyone knows pollution is bad—even thermal pollution, otherwise described as warm water. Occasionally we even get dueling names. Both "right to life" and "pro-choice" are obviously good things; how could anyone be against either?
For a more recent example, consider Obama's economic policy. Everyone—including Obama, back when he was running for President—is against deficit spending. Relabel it "stimulus" and everyone is for it. The label neatly evades the question of whether having the government borrow money and spend it is actually a way of getting out of a recession—a claim for which evidence is distinctly thin. It is stimulus, so obviously it must stimulate.
Why is such rhetorical manipulation effective? If voters were well-informed about the details of public policy, clever labeling would be unlikely to sway them. If you have a well-informed opinion about affirmative action or Obama's stimulus plan, you probably won't change your mind merely because of a change in terminology.
I should have posted this earlier. But this Monday at 12 PM , I will be taking part in a panel on "national service" at the Hudson Institute (1015 15th Street, NW, Washington DC), along with Bruce Reed of the Democratic Leadership Council, consultant Shirley Sagawa, and prominent conservative political scientist Leslie Lenkowsky. I anticipate that Mr. Reed and Ms. Sagawa will be defending federal government-sponsored national service, whereas Lenkowsky and I will be criticizing it.
Back in 2007, I wrote a series of posts criticizing mandatory national service and arguing that it violates the Thirteenth Amendment's prohibition of "involuntary servitude" for any purpose other than as punishment for a crime. On the panel, I hope to discuss both current proposals for voluntary service (which I don't think are necessarily unconstitutional, but are still seriously flawed), as well as the looming danger of mandatory national service - an idea that has been endorsed by many prominent political leaders, including White House Chief of Staff Rahm Emanuel and John McCain. The issue doesn't necessarily split people along left-right lines, though that may be the case on this panel. Many conservatives defended the draft until the 1970s, and conservative icon William F. Buckley published a book advocating national service in 1989 (he claimed his proposal was for voluntary service only, but also urged that those who refuse to serve be subject to various "sanctions," including denial of a drivers license and high school diploma).
UPDATE: The original version of this post gave the wrong address for the Hudson Institute. I apologize for any confusion.
Duke Ellington And His Orchestra Plays "Satin Doll":
It's been a while since I've done any weekend jazzblogging, mostly because I haven't come across clips that I found good enough to post. But here's one: The Duke Ellington Orchestra playing "Satin Doll," in color and with quite good sound sound. Enjoy.
I'm not sure if this really counts as a "food," but it's really good--at least if you like regular Hawaiian Punch. In fact, I don't think I've ever tasted a diet drink that tastes more like the original, and it's only ten calories per serving.
Even more good news: it's really cheap--in my experience, $2.50 for a gallon.
The bad news: it's really hard to find. Locally, in the D.C. area, I've only seen it at Wegman's, and since Wegman's is not convenient for me, I have to buy four or five at a time. Out-of-town, I've seen it in Walmart supercenters.
I'll be in Louisiana this coming week, giving talks about The Mechanisms of the Slippery Slope:
Tuesday, February 10, 12:30 pm to 2 pm at Loyola of New Orleans Law School, room 111. Free.
Tuesday, February 10, at 5 pm at Tulane Law School, faculty lounge. Free.
Wednesday, February 11, 11:15 am (cash bar), 12 noon (lunch) at the Plimsoll Club of the World Trade Center, Galvez Room. Costs $45 per person, $25 for students and judicial law clerks; RSVP to jinman at liskow dot com, but it might be too late now.
Thursday, February 12, 12:40 pm to 1:40 pm at Louisiana State University Law School, room 110. Free.
All events are put on by local Federalist Society chapters; the Wednesday lunch event is put on by the local lawyers' division, and the others by student groups. Many thanks to them for organizing everything!
Interpretation vs Construction:
Readers who think they may one day want to be legal academics should make it a habit to read University of Illinois Professor Lawrence Solum's Legal Theory Blog. There you will find his recommendations of recent legal scholarship, as well as his invaluable Legal Theory Lexicon. Today, for example, he explains the interpretation-construction distinction.
We can roughly define these two activities as follows:
* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules
In my experience, law professors conflate these two activities all the time. What matters is not the terminology--that is merely semantic--but that serious confusion results from failure to recognize them as two different sorts of activities. The failure to distinguish which of these two activities are being discussed obscures sources of potential common ground as well as the substance of whatever genuine disagreements may exist.
After a very useful discussion of the difference senses of "meaning" as well as the difference between "vagueness" and "ambiguity," Solum then asks, "What Work Does the Interpretation-Construction Distinction Do?"
Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice?
One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity. Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts.
So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.)
But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error).
So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things.
The Interpretation-Construction Distinction and the New Originalism
One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.
Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.
This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction.
This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.
Conclusion
Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.
THE doctor who sparked the scare over the safety of the MMR vaccine for children changed and misreported results in his research, creating the appearance of a possible link with autism, a Sunday Times investigation has found....
The [original] research was published in February 1998 in an article in The Lancet medical journal. It claimed that the families of eight out of 12 children attending a routine clinic at the hospital had blamed MMR for their autism, and said that problems came on within days of the jab. The team also claimed to have discovered a new inflammatory bowel disease underlying the children’s conditions.
However, our investigation, confirmed by evidence presented to the General Medical Council (GMC), reveals that: In most of the 12 cases, the children’s ailments as described in The Lancet were different from their hospital and GP records. Although the research paper claimed that problems came on within days of the jab, in only one case did medical records suggest this was true, and in many of the cases medical concerns had been raised before the children were vaccinated. Hospital pathologists, looking for inflammatory bowel disease, reported in the majority of cases that the gut was normal. This was then reviewed and the Lancet paper showed them as abnormal....
UPDATE: By the way, I should note that if there was misreported data here, the failure was not a failure of "peer review" (at least as the term is, to my knowledge, generally understood). Peer review involves reviewers checking the written article to see if it has errors in its reasoning, or fails to consider important and already known contrary data or arguments, or is duplicative of preexisting research.
Peer review, as I understand it, generally doesn't involve source-checking the article to make sure that it accurately reports the underlying data. Law review cite-checking in some measure does that, but it's unusual as far as scholarly journals go (partly because it relies on the unpaid labor of student editors, who are common only in law; faculty editors and peer reviewers aren't willing to do this sort of thing). And I doubt that even cite-checking would usually go so far as to demand that the scholar provide the underlying medical charts on which the author based his data. Usually the tables from the author would suffice, especially if the author says -- accurately or not -- that the underlying charts aren't available (for instance, because of privacy concerns at the institution that maintains the charts).
To be sure, The Lancet and other such journals could institute systems in which all the underlying data is checked as much as possible, though even that can't catch certain kinds of errors (and especially certain kinds of deliberate falsifications). But it would require a tremendous amount of extra work. Perhaps some learned journals do invest this kind of work, but to my knowledge that is not and has not been the norm; much of academic publishing is built on trust of the authors, and even if some verification is done, it is not the sort of comprehensive verification that one does when one suspects that the data is badly wrong or even deliberately falsified.
In United States v. Cuniff, the U.S. Court of Appeals for the Sixth Circuit rejected a landowner challenge to federal jurisdiction. At issue was the scope of federal regulation under the Clean Water Act over privately owned wetlands after Rapanos v. United States. Assuming the Cuniff opinion paints an accurate picture of the relevant details, and the extent of the ecological connection between the relevant wetlands and local waters, the court may have been correct to rule against the landowners. But the Court's discussion of jurisdiction unnecessarily complicated the relevant analysis, suggesting (as have other courts) that there are multiple paths for asserting jurisdiction post-Rapanos.
In Rapanos, the Supreme Court split 4-1-4 over the proper test for determining when wetlands adjacent to tributaries could constitute “waters of the United States” subject to federal control. Justice Scalia’s four-justice majority adopted a narrow definition of “waters of the United States” that requires a relatively continuous flow of surface water to establish that a wetland is subject to regulation. Justice Kennedy adopted a more expansive view, holding that the Clean Water Act extends to any waters or wetlands with a “significant nexus” to navigable waters. The four dissenters adopted an even more expansive view of federal jurisdiction, completely deferring to any federal agency determination, and suggesting that lower courts could find jurisdiction if either the Scalia or Kennedy standard is met. This suggestion, noted in Cuniff and other cases, would suggest there are wetlands that would fail Justice Kennedy's "significant nexus" test, but somehow satisfy the other eight justices. I think this is wrong.
Cuniff dodged the issue in one respect, as it found that jurisdiction could be established under either the Scalia-plurality or Kennedy test. My point is that if Rapanos is read properly, the additional analysis was unnecessary. Only the Kennedy test is controlling as there is no reason to believe there are any wetlands that would meet the Scalia-plurality test for jurisdiction without also meeting the Kennedy test. This is a point the Scalia plurality made explicit, explaining that “relatively continuous flow is a necessary condition for qualification as a ‘water’ not an adequate condition.” (emphasis in original). Thus, even with a relatively continuous flow, additional indicia of a significant hydrological connection could be required for jurisdiction, and such indicia would almost certainly satisfy the relatively flexible test articulated by Justice Kennedy. Alternatively, were there to be a wetland connected to a navigable-in-fact water by a “relatively continuous flow” of water that is so inconsequential as to fail Justice Kennedy’s “significant nexus” test, there is little reason to think it would satisfy that of the Scalia plurality. [For more on my assessment of Rapanos, see here and here.]
In these sorts of cases I think lower courts should focus exclusively on the “significant nexus” requirement as articulated by Justice Kennedy. This may be time consuming, but it is the proper way to apply Rapanos. If courts (and others) want a clearer jurisdictional test than Justice Kennedy’s opinion provides, the U.S. Army Corps of Engineers and Environmental Protection Agency will have to refine its regulations to clarify its interpretation of the scope of “waters of the United States.” Such a rule-making is long overdue.
UPDATE: Speaking of Rapanos, here's an op-ed by PLF attorney Reed Hopper on John Rapanos' settlement of his case with the government.
Here's a nice little essay by Ray Pellechia, on the "official" NY Stock Exchange blog, suggesting that Harry Markopolos, who had figured out the Madoff scam a long time ago, would have been a lot more effective had he blogged about what he found, instead of doing what he actually did in 2005 (i.e., sending a detailed, 19-page memo to the SEC. Pellechia writes:
Certainly, any failure to convince others was not due to lack of effort. Perhaps Mr. Markopolos lacked only an effective medium to communicate his warning. Here's a thought experiment: What would have happened if Mr. Markopolos had blogged his analysis? That is, what if he had posted the entire piece on a blog, under his name or a pseudonym?
We'll never know the answer, but here's what I think might have followed:
• The post would have quickly spread far and wide among traders and investors. It's a small Street, as the saying goes, and an analysis raising questions about the investment results of a prominent name such as Madoff would have sent e-mails flying.
• Those who had money invested with Mr. Madoff -- or who were thinking of investing -- would have done the same math that Mr. Markopolos had done, undoubtedly reaching the same conclusion. The resulting rush to pull money out and the avoidance of adding new money would have meant a faster end to the alleged Ponzi scheme.
Last week, the U.S. Court of Appeals for the Sixth Circuit decided United States v. Cundiff, a case arising out of Mulhlenberg County, Kentucky, concerning the scope of federal wetland regulations post-Rapanos. The wetlands at issue were a "festering eyesore," according to the court, largely due to acidic runoff from an nearby abandoned mine site. Rather than describe the poor environmental conditions of the land in its own words, however, the Court dropped a footnote to "Paradise," a John Prine song about Muhlenberg County's environmental woes.
And daddy won’t you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I’m sorry my son, but you’re too late in asking
Mister Peabody’s coal train has hauled it away . . . .
Then the coal company came with the world’s largest shovel
And they tortured the timber and stripped all the land
Well, they dug for their coal ‘til the land was forsaken
Then they wrote it all down as the progress of man . . .
When a court quotes lyrics like this, you can assume a challenge to federal environmental regulation will not fare well. And so it was. The Sixth Circuit upheld federal jurisdiction over the Cundiffs land.
The full lyrics are available here, and here's a video of Prine performing the song.
When newspapers cease to exist, who will supply the news for all those folks who claim they don't need newspapers because they get their news on the Internet? I conduct a small study of the question in my latest Rocky Mountain News column, Dying newspapers, vanishing coverage.
The news for gay marriage advocates hasn't been especially good lately. But today the Wyoming state house defeated a proposed state constitutional amendment limiting marriage to one man and one woman. The defeat is especially significant because, in a legislative body in which the GOP enjoys a 41-19 advantage, sixteen Republicans joined all nineteen Democrats to vote against. (HT: Michael Petrelis.)
Following up on Jonathan's post about rendition, Panetta also said that the CIA might use interrogation techniques beyond those already approved by President Obama. With permission from the lawyers and the President, of course. As I read Panetta's comments, the Obama CIA's use of coercive techniques wouldn't be torture because we would never do that -- no matter the circumstances. It also wouldn't be "enhanced interrogation" because that's what Bush did. It would simply be "additional authority."
The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.
That has long been U.S. policy, but some former prisoners subjected to the process — known as extraordinary rendition_ during the Bush administration's anti-terror war say they were tortured.
"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said Friday in his second day before the Senate Intelligence Committee. "I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries." . . .
Panetta said the Obama administration will no longer move detainees to secret CIA prisons for interrogation, because the so-called "black sites" have been ordered closed. But it will move prisoners to other countries for prosecution, he said.
What Do Supreme Court Precedents Tell Us About Removal of Books from School Libraries?
I often hear arguments that the Supreme Court has held that school boards are limited by the Free Speech Clause in their ability to remove books. A commenter on the first thread in this chain offers an example:
The distinction is that the school library already had the copy and then removed it. While many will debate whether that distinction makes a difference, it does under Supreme Court jurisprudence.
In fact, the U.S. Courts Web site says the same. [UPDATE: I e-mailed the Administrative Office of the U.S. Courts about this, and they removed the erroneous description.]
But this turns out not to be an accurate statement of what the Supreme Court has actually held. This issue was indeed before the court in Board of Ed. v. Pico, and four Justices did take the view that library removal decisions were generally unconstitutional if they were motivated by disapproval of the ideas that the book expresses (though would be permissible if they were motivated by other, supposedly more neutral, factors, such as the book's vulgarity or age-inappropriateness or inaccuracy). And the four Justices were joined by one Justice in affirming the lower court's decision, which refused to grant summary judgment in favor of the school board.
But there were precisely the same number of votes — four — for the view that even viewpoint-based removal decisions were generally constitutional (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans) as there were for the view that such decisions were generally unconstitutional. The swing vote, Justice White, deliberately did not opine on the question; Pico thus left the issue 4-4.
Why did Justice White agree as to the bottom line action — affirming the court of appeals decision — with those Justices who thought viewpoint-based removals were unconstitutional? Simply because he did not want the issue resolved at that point, and procedurally the way to avoid that was to affirm. Here's what happened, in Justice White's own words (emphasis added):
The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.
The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.
I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:
"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.
"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."
We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."
The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.
So that's why Pico has no precedential value on this question. The Court's fractured decision in United States v. American Library Ass'n — where there was also no majority opinion — doesn't resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a "designated public forum" that's generally open for a nearly limitless variety of speech, then the library wouldn't be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There's no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.
In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based. And Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible.
But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).
(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)
So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is to be on public school library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)
Identity and the Exclusionary Rule: Why United States v. Farias-Gonzales Was Wrong To Apply Hudson v. Michigan Balancing:
On Tuesday, the Eleventh Circuit handed down an important decision on the Fourth Amendment's exclusionary rule: United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales applies the Hudson v. Michigan, 547 U.S. 586 (2006), balancing framework to hold that identity information cannot be suppressed under the Fourth Amendment.
Although the ultimate result is plausible, I think the court's reasoning is clearly incorrect: Hudson cannot properly be applied in the way the Court did. In this post, I want to explain why the Eleventh Circuit misapplied Hudson. I'll also explain why the court's approach is very troubling, and why other courts need to be aware of the Eleventh Circuit's error. Finally, I'll speculate as to how this error happened: This may have been another example of a court reaching out and deciding an issue not briefed, and then getting it wrong without the benefit of briefing.
I. The Issue
Imagine the police stop a person suspected of being an illegal immigrant. The police unlawfully search the suspect in violation of the Fourth Amendment, and the unlawful search leads the police to learn the suspect's identity as an immigrant who was previously kicked out of the United States and then illegally reentered. The government brings criminal charges for illegal reentry, and to prove its case seeks to use evidence of the suspect's identity learned as a fruit of the unlawful stop. Here's the interesting Fourth Amendment question: Is the evidence of identity admissible?
It's a surprisingly tricky question, I think. On one hand, the evidence was obtained as a fruit of an unlawful stop, so you could say it should be suppressed. On the other hand, identity is not a fact about a specific act; it is more like a status. So if the evidence gets suppressed, the feds still know who the person is. Can they just re-arrest the person on the spot at the suppression hearing? Or do they have to let the person go and forget what they know? These sorts of puzzles have sometimes led the Supreme Court to treat identity as sui generis in criminal cases. See, e.g.,Pennsylvania v. Muniz (adopting "routine booking exception" for Miranda that exempts identity from suppression); Hiibel v. Sixth Judicial District Court (considering when identity can be self-incriminating for Fifth Amendment purposes).
In the Fourth Amendment context, courts have generally dealt with this issue by relying on dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Lopez-Mendoza involved suppression of identity evidence on Fourth Amendment grounds at a civil deportation hearing. Although that involved a civil case, and its holding seems limited to civil cases, Justice O'Connor's majority opinion also contained this very broad statement that on its face also applies to criminal proceedings:
The "body" or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. See [Gerstein v. Pugh,] 420 U. S. 119 (1975); Frisbie v. Collins, 342 U. S. 519, 342 U. S. 522 (1952); United States ex rel. Bilokumsky v. Tod, supra, at 263 U. S. 158.
This line is technically dicta, and the cases cited as authority don't back up the statement. But circuit courts generally have concluded that this passage pretty much settles things based on the certainty and broad scope of the Supreme Court's language. See United States v. Bowley, 435 F.3d 426 (3rd Cir. 2006), United States v. Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005), United States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999); United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).
II. The Eleventh Circuit's Decision in Farias-Gonzales
That brings us to this week's decision, an opinion by the Eleventh Circuit in United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales reaches the same result as the other circuits — the court allowed the identity information — in a case with nearly identical facts as the other cases. But it did so using a very different and far-reaching rationale. Instead of concluding that the issue was settled by Lopez-Mendoza, the Eleventh Circuit held that identity information is not subject to suppression under the balancing framework of Hudson v. Michigan, 547 U.S. 586 (2006).
The court reasoned that under Hudson, the proper question was one of cost-benefit: "whether the exclusion of identity-related evidence in a criminal prosecution, where the evidence is offered solely to prove the identity of the defendant, is justified on the ground that the deterrence benefit of excluding the evidence outweighs its social costs." The court reasoned that the social costs of excluding identity evidence in criminal cases was high: A suspect's identity is often needed to prove elements of crimes (like proving a person is a felon for a felon-in-possession charge) or to make accurate sentencing enhancements. In contrast, the deterrent role of suppression would be low, because the police could find identity another way and re-indict the defendant based on the alternative method of proving identity.
The Court concluded:
As in Hudson, the social costs of excluding evidence in this case are great, while the deterrence benefits are minimal. Therefore, we hold that the exclusionary rule does not apply to evidence to establish the defendant’s identity in a criminal prosecution, and accordingly, the fingerprint and photograph evidence in this case offered to prove Farias-Gonzalez’s identity is not suppressible. The district court did not err in concluding that identity-related evidence is not suppressible.
III. My Analysis
Several circuits have held that identity evidence cannot be suppressed in criminal cases based on the dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and given the broad language from that case, I cannot fault them. However, reaching the same result using Hudson v. Michigan balancing is clearly incorrect.
The problem is that the balancing approach for the exclusionary rule balances deterrence and costs for particular types of Fourth Amendment violations. The Fourth Amendment has been interpreted to impose hundreds of different rules and standards that apply in different situations, and balancing cases like Hudson and the more recent Herring v. United States applied the balance over a set of specific category of situations. Thus, in Hudson, the Supreme Court applied balancing for knock and announce violations. In Herring, it applied balancing for "isolated negligence" that led to the arrest of the wrong guy. In each case, the Supreme Court considered the cost/benefit over the defined legal category of the error. It then reached a decision as to whether suppression is available for that category of errors.
The Eleventh Circuit panel in Farias-Gonzales did something quite different. It applied balancing to the type of information illegally obtained instead of the type of violation. The Fourth Amendment error in Farias-Gonzales was a warrantless search of the person; that unlawful search led to the police learning who the suspect was. But instead of considering the category of "warrantless searches of persons," and balancing the effect of the exclusionary rule over that set of facts, the court considered the effect of excluding the category of information obtained, defined rather arbitrarily by the court as "identity information." But that is simply incorrect. Indeed, in Hudson, the violation didn't lead to the discovery of any information at all: there was no cause and effect relationship betwee the knock and announce violation and the evidence. If the Hudson approach were to applying balancing over the type of information obtained, it would have been a balance over a null set.
It's important to see where this sort of analysis can lead. If courts generally adopt a balancing approach to exclusion based on the category of information obtained, it will let every state and federal court do pretty much whatever the court wants with every Fourth Amendment violation raised in every motion to suppress. The problem is that defining the category of information is arbitrary, as courts can construe that as narrowly or broadly as they wish. Courts can construe the category very narrowly (for example, "evidence of identity learned in a traffic stop after unlawfully moving a illegal immigrant's shirt to reveal gang tattoos"), very broadly, (for example, "information about suspects"), medium broadly, (for example, "identity information in immigration cases"), substantially broadly (for example, "identity information in criminal cases generally"), or anywhere in between.
By deciding the scope of cases, however, each court gets to determine what is balanced and it therefore can usually pick what the outcome of the balance will be. If a court wants to keep the exclusionary rule strong, it can pick a balance over a set of facts that will maximize deterrence and minimize social cost. If it wants to allow the evidence, it can pick a balance to minimize deterrence and maximize social cost. As I said, this will often give individual courts — every trial court, every appellate court, both state and federal — considerable freedom to craft new Fourth Amendment rules that can support the result the court wants to reach in that case.
This probably sounds a bit far-fetched, but stay with me for an example. Imagine a homicide case in which the murderer committed a brutal murder, photographed himself with the body of the victim, and then kept the photographs in his home. The police have no leads, and the case is going cold, but one police officer has a hunch that a particular person committed the offense. The police search the suspect's home without a warrant and find the photographs. If you take the lead of Farias -Gonzales, it's easy for a court to craft a rule that says that the evidence is admissible. Just say that the category is "evidence that a suspect committed a murder," or, if you want a narrower category, "photographs that conclusively prove a suspect committed a brutal murder." You can pretty much draw the category in a way that the suppression of the evidence in that category would impose a cost higher than the deterrent benefit. And voila, the evidence of crime isn't suppressed under an approach that is billed as, but isn't actually, Hudson balancing.
I suspect the Farias-Gonzales judges just didn't think of the differences between their case and Hudson, and in particular the key difference between balancing over a type of violation and balancing over a type of information obtained. But I think the difference is essential, and the Farias-Gonzales court committed a major error in applying Hudson balancing to identity information.
IV. How Did This Happen?
My last question is, how did this error happen? Did the parties just not argue the point very effectively? Well, I found the briefs on Westlaw, and it turns out that neither the government nor the defendant cited Hudson v. Michigan or argued that the balancing approach applies. My understanding is that the government at oral argument made some references to the policy consequences of suppressing identity evidence in the case, but that it did not expressly argue that Hudson balancing applied. Instead, the parties argued about whether the Fourth Amendment was violated and whether to apply INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
I'm not sure, but my sense is that the panel might have come up with the Hudson analysis on its own after oral argument. If that understanding is correct, this case might be another example of a Court of Appeals trying to address an issue on its own that wasn't raised in the briefs or explored at argument — and then getting it wrong.
What May a School Board Do When It Concludes an Elementary School Library Book Omits Important Information?
A U.S. Court of Appeals for the Eleventh Circuit panel just handed down a monster 177-page decision on the subject (with a two-judge majority and a one-judge dissent). I think the majority got it mostly right, in upholding the school board's decision about the book; and I wanted to blog a few posts about various aspects of the problem.
1. The concrete details (albeit necessarily oversimplified): The Miami-Dade school district had a bunch of copies of A Visit to Cuba and its Spanish version Vamos a Cuba. The book (the text of which is included at pp. 175-77 of the decision) is a short and bland item, with no mention at all that Cuba is an oppressive dictatorship. Many people objected to the book on the grounds that this omission (plus some other items) made the book inaccurate; the school board eventually removed the book. The question is whether this removal violates the First Amendment.
The question that the panel discussed was "whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies [in the book]" as opposed to "simply because [the Board members] dislike the ideas contained in [the] book[]." (As I'll mention later, that might not be the right constitutional standard, but the majority used the standard because it was in its view the most plaintiff-friendly plausible standard, and yet the plaintiffs would lose even under it.) Some of the discussion was about some relatively minor inaccuracies -- for instance, whether a particular illustration properly depicts "paintings made by people who lived in Cuba about 1,000 years ago" (it doesn't) -- but it's pretty clear that the removal decision wasn't based on those inaccuracies.
Much of the discussion was about the supposed inaccuracy of the statement that "People in Cuba eat, work, and go to school like you do." The majority repeatedly and sharply condemned this statement as inaccurate, on the grounds that "It is simply not true that people in Cuba “eat, work, and go to school” the same way that American children do." "[I]n Cuba food is rationed by the government." "In Cuba there is “little private work,” and “it [is] a crime to exercise private initiative or to have private practice of a profession.”" "The book’s assertion that people in Cuba go to school “like you do” is false, too. In addition to agricultural field work being a mandatory part of school for Cuban children, the Human Rights Report found that elementary and secondary students receive “obligatory ideological indoctrination.”"
But while I sympathize with the majority's position, I think it places too much weight on one interpretation of "like you do." As the dissent points out, "It appears fairly evident that this short sentence is meant to show simply that other children in other cultures also do those things" -- basically, "You eat, work, and go to school, and so do people in Cuba." The very next sentence does say, "Life in Cuba is also unique," and the rest of the book mentions differences in food, schooling, and work. I think it's unlikely that a 4-to-8-year-old reading the book will assume "like you do" means "in exactly the same way as you do."
2. The real problem with the book, it seems to me, is not with any inaccurate statements the book makes. It's with what the book excludes, and thus with the overall picture that it paints (something that the majority and the critics of the book also stress). The book omits what to many people is the most important fact about Cuba -- that it's an oppressive Communist dictatorship. To be sure, this is a fact that isn't trivial to convey to 4-to-8-year-olds, but something of it could be conveyed (other books in the series mention the dire poverty or the legacy of war in other countries).
And it's the absence of this fact that makes the book misleading. As the opinion points out, the book is not that different from an "A Visit to 1930s and 1940s Germany" that omitted any mention of anti-Semitism or tyranny, or "A Visit to the early 1800s American South" that omitted any mention of slavery. Whether or not the book said "People in the Third Reich [or 1830 Alabama] ate and worked like you do," the main problem would be in what the book excluded not with what it included.
3. It seems to me that elementary schools are eminently entitled to exclude books that omit such important information from their libraries. An elementary school library is a place where the school itself provides books that its management (ultimately, the public) thinks are worthwhile for students, and that its management is prepared to endorse. What's more, the young readers are unlikely to read the books with great skepticism, nor are they likely to use each book as a starting point for a broader research program on the subject. (Occasionally, a child will get excited about a topic and want to read much more about it, but not often and certainly not always.)
The school should be entitled to make sure that a book it includes in its library adequately conveys the information in a way that doesn't leave an unduly misleading impression. (I say "unduly" because this will always be a matter of degree; any short book, and for that matter any long one, will always oversimplify things in certain ways that may end up misleading people.) The school need not do so in all instances. But it should be free to do so when it chooses.
The dissent's response -- "The answer to books that do not provide all the information a reader wants is to find another book. If a reader is curious about the Castro regime, he can find another book that enlightens him further." -- doesn't work. The school is aware that many readers won't want to find another book, and of course many readers who read the bland summary of Cuba won't be curious about the Castro regime because they won't even know about the Castro regime, and wouldn't be curious about it even if the book mentioned the word "Castro." The school should be able to make sure that even readers who read this one book won't come away with a picture of Cuba that omits a fact that the school reasonably believes to extremely important.
4. The dissent also responds by arguing that the School Board was really motivated by "a political motive" -- by the school board's disagreement with the "ideas or points-of-view" that the book conveyed -- rather than by "legitimate pedagogical concerns" such as the possibility that the book conveyed "inaccuracies by omission." And of course the critics of the book did loathe Castro's regime, and thought the book conveyed a bad point of view.
But they thought it conveyed a bad point of view precisely because they thought the book was inaccurate by omission. The book effectively conveyed the message that Cuba is much like America, except somewhat poorer and with a somewhat different lifestyle. Whether that's accurate or not depends on your viewpoint about the significance of its being an oppressive dictatorship. The worse the Castro regime is in your view, the more inaccurate the book is by omission.
Most decisions about what facts to include and which to exclude are subjected. Some people might think that including some fact is important; others might disagree. Much of the judgment will turn on their viewpoints about the significance of various evils (or goods), about what the most important take-away message from some event or circumstance might be. One can't entirely be "viewpoint-neutral" in evaluating claims of inaccuracy by omission, especially as to controversial topics, because what is a significant omission and what's not is inherently tied to one's viewpoint about the events.
I think that on balance this is an excellent illustration for why there shouldn't be any constitutional problem even with School Board members' removing a book "simply because they dislike the ideas contained in [the] book[]." But even if one takes the view that removal is permissible only when the book is inaccurate (or vulgar or some such), the School Board's decision that this book is inaccurate strikes me as eminently defensible -- in my view, actually correct, but in any case well within the School Board's rightful discretion to control what messages it conveys through its elementary school libraries.
I'll try to post later today about the constitutional precedent on the subject (the short summary is that the matter is highly unsettled), on whether it should make a constitutional difference that the School Board reversed the decisions of other review committees that would have retained the book (I will argue that it shouldn't), and more broadly on whether there should be any Free Speech Clause constraints on school library decisions in this area (I will argue that there shouldn't be, either as to acquisition of books or as to removal of books).
seeks to increase the understanding of ideas and policies based on the inalienable human rights to life, liberty, and the pursuit of happiness. It offers a human-rights-based alternative to coercive ideologies worldwide by showing the justice and the practical benefits of personal liberty and limitations on state power. The Initiative creates, manages, and promotes products and programs in a number of languages and encourages worldwide cooperation among those who understand and value liberty.
As a result of this shift, Tom Palmer has now moved from The Cato Institute to the Atlas Foundation. Tom has been spreading libertarian ideas by traveling throughout the world to help identify and support local libertarians ("liberals" in Europe) since before the fall of the USSR. I wish him and his new endeavor all the best. Here is a video explaining the new organization.
Some commentators and trade experts have expressed concern that the "Buy American" provisions in the stimulus are not only wasteful, but potentially harmful in that they could be a prelude to greater protectionism, both here and abroad. For instance, last Saturday in the NYT, Douglas Irwin wrote:
Steel industry lobbyists seem to have persuaded the House to insert a “Buy American” provision in the stimulus bill it passed last week. This provision requires that preference be given to domestic steel producers in building contracts and other spending. The House bill also requires that the uniforms and other textiles used by the Transportation Security Administration be produced in the United States, and the Senate may broaden such provisions to include many other products.
That might sound reasonable, but history has shown that Buy American provisions can raise the cost and diminish the effect of a spending package. . . . While this is a windfall for a lucky steel company, steel production is capital intensive, and the rule makes less money available for other construction projects that can employ many more workers.
American manufacturers have ample capacity to fill the new orders that will come as a result of the fiscal stimulus. In addition, other countries are watching closely to see if the crisis becomes a general excuse for the United States to block imports and favor domestic firms. General Electric and Caterpillar have opposed the Buy American provision because they fear it will hurt their ability to win contracts abroad.
They’re right to be concerned. Once we get through the current economic mess, China, India and other countries are likely to continue their large investments in building projects. If such countries also adopt our preferences for domestic producers, then America will be at a competitive disadvantage in bidding for those contracts.
The Senate's "Buy American" provisions are even worse, and could have significant trade implications while providing minimal offsetting employment benefits, noted trade economists warn. Pascal Lamy, head of the World Trade Organization, has also expressed concern.
Buy local” measures by governments will jeopardise export sector jobs and risk setting the world on a damaging downward spiral of beggar-thy-neighbour protectionism, the head of the World Trade Organisation has warned.
Speaking to the Financial Times, Pascal Lamy, WTO director-general, said pressures for economic nationalism were an inevitable response to the global crisis, but in an integrated world economy such measures were much more dangerous than in the past.
“If you start killing imports, you will kill exports,” Mr Lamy said. And since a high proportion of global output depended on international supply chains, shrinking trade flows would have a huge multiplier impact on world production and jobs.
Mr Lamy would not comment directly on the Buy American provisions in the US economic stimulus bill, which potentially could be the subject of WTO litigation, but said that Washington, like other governments, had to abide by its international commitments.
So all this time I've been in search of Jefferson's moose, and now I find that I'd been searching for the wrong huge mammal! Jefferson's mammothhas been unearthed, right under the soon-to-be-built Thomas Jefferson School of Law in San Diego ... Seriously. It could only have been better and more apt if they had found the bones under the Rotunda at U VA.
The AP reports that Goucher College professor Leopold Munyakazi was arrested for violating the conditions of his visa. [What, you were expecting someone else?] Munyakazi is accused of participating in the Rwandan genocide, charges he denies.
Munyakazi is charged with murder and several genocide-related counts, according to a copy of an indictment provided by Munyakazi. Goucher officials said they gave Munyakazi a copy of the indictment, which they received from a Rwandan prosecutor.
Alison Des Forges, senior adviser to Human Rights Watch's Africa division, reviewed the indictment and said it contained details that do not "fit historical facts of the time." For instance, it is unlikely that Munyakazi organized a militia associated with a party that was opposed to the party he was affiliated with, Des Forges said.
Goucher suspended Munyakazi because the allegations are so serious, college President Sanford Ungar said earlier in the week, adding the removal wasn't a judgment of the professor or the charges.
.
