The Volokh Conspiracy: Recent Episodes
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We’ve moved to the Reason site — at http://reason.com/volokh — as part of a new joint venture with Reason; if you aren’t redirected automatically, please click here.
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I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.
Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).
The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)
Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how [...]
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The WSJ has an interesting article today on the Target credit card security breach. As the article notes, the US card system is less secure than elsewhere in the world, most notably Europe, which has a “chip and PIN” system, which has a computer chip embedded in the card and requires the purchaser to insert a PIN as well to make a transaction. The Target security breach has led many to wonder–and implicitly the WSJ–why the US has lagged on adopting this more secure technology.
Well it turns out that the economics of credit card security is more complicated than it appears at first glance. But first, an important thing to keep in mind: historically the United States has been a high-trust, low-fraud country when it comes to payment card usage. For example, the conventional practice of handing over your credit card (or debit card) to a waiter in a restaurant and having him disappear into a back room with it is something that must strike people in other countries as somewhat bizarre. Nevertheless, we do it all the time and rarely does anything go wrong in this process. So, this makes a difference–in a high-trust, low-fraud country it generally is not necessary to invest in as elaborate security protections as elsewhere. As an analogy, consider that in the U.S. very few restaurants, stores, or hotels routinely post visible armed guards at their front door, whereas this precaution is not uncommon in other countries.
With that background in mind, the WSJ article contains some interesting numbers relative to the optimal level of credit card security.
First, consider the size of the potential dollar size:
But if the chip cards were used in the U.S., fraud losses could be halved, Aite Group estimates. U.S. merchants and banks had 2012 losses of
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This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.
I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.
Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.
And some [...]
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I think President Obama has been better to Israel than his critics acknowledge, and has been very pro-Israel by any standard except perhaps that of the prior two presidents, who were the most pro-Israel of any American presidents. But it’s hard to imagine him giving a speech like this:
“It is a Canadian tradition to stand for what is principled and just, regardless of whether it is convenient or popular,” he said to the Israeli parliament.
But “support today for the Jewish state of Israel is more than a moral imperative. It is also of strategic importance, also a matter of our own long-term interests,” he elaborated, praising Israel’s record on human rights and economic freedom. “Israel is the only country in the Middle East which has long anchored itself in the ideals of freedom, democracy and the rule of law. These are not mere notions. They are the things that, over time and against all odds, have proven to be the only ground in which human rights, political stability, and economic prosperity, may flourish. These values are not proprietary; they do not belong to one nation or one people. Nor are they a finite resource; on the contrary, the wider they are spread, the stronger they grow.”
“Likewise, when they are threatened anywhere, they are threatened everywhere,” Harper continued. And “what today threatens the societies that embrace such values and the progress they nurture? Those who scorn modernity, who loathe the liberty of others, and who hold the differences of peoples and cultures in contempt. Those who often begin by hating the Jews, but, history shows us, end up hating anyone who is not them. Those forces which have threatened the State of Israel every single day of its existence, and which, today, as 9-11 graphically showed us,
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Here are some speaking engagements I will be doing in the next two weeks:
Thursday, January 22: I will be delivering the annual Brennan Lecture at Oklahoma City University. My topic (picked because it interested the organizers) is “NFIB v. Sebelius and the Constitutional Debate Over Federalism.” Perhaps Justice William Brennan would turn over in his grave if he knew that I was giving this lecture. There are important areas of agreement between us, but probably not on this issue. On the other hand, he might already have turned over when co-blogger Randy Barnett delivered a previous lecture in the series in 2004 (the list of past speakers also includes many people closer to Brennan’s views).
Jan. 27, noon: University of Chicago Law School Federalist Society: I will be doing a talk on my book Democracy and Political Ignorance: Why Smaller Government is Smarter (with commentary by a U of Chicago professor, name TBA).
Jan. 28, noon: University of Illinois College of Law Federalist Society, Champaign, IL: “Democracy and Political Ignorance,” (with commentary by Illinois Prof. Jason Mazzone).
January 31, 2-3:30 PM: University of Texas School of Law, Austin Texas, Conference on “Is Democracy Desirable?” (with commentary by Yale Law School Professor Heather Gerken and University of Texas Professor Sanford Levinson). [...]
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I recently wrote a guest post for the Open Borders blog on migration and political freedom. The connection between the two is often ignored in debates over immigration policy. Here’s an excerpt:
There is widespread agreement that political freedom is a fundamental human right – that everyone is entitled to substantial freedom of choice in deciding what type of government policies they will live under. This is one of the main justifications for democracy. Voting enables the people to exercise political choice. But the principle of political freedom also has implications for international migration. The same logic that justifies giving people a right vote at the ballot box also implies that they should have a right to vote with their feet. This is particularly true of people living under authoritarian governments, where foot voting is often the only feasible way of exercising any political choice at all. But even for those fortunate enough to live under a democracy, the right to migrate elsewhere is an important aspect of political freedom. In both cases, obviously, the right to emigrate is of little value unless there is also a right to immigrate to some other nation….
Although the democracy has spread rapidly in recent decades, the majority of the world’s population still live in undemocratic states….
Residents of many authoritarian nations can exercise political freedom only through international migration or not at all. If developed democracies refuse admission to migrants from such countries, they effectively deprive them of their political freedom. They therefore become complicit in violating a fundamental human right. One can object that Westerners are not responsible for the lack of democracy in many Third World nations. But as philosopher Michael Huemer explains, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use
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Copernicus Publications, “the innovative open access publisher,” recently announced it was terminating one of its journals, Pattern Recognition in Physics due to concerns about the journal’s editorial practices. PRP was not even one year old. It seems the problems began when the journal’s editors agreed to a special issue on “Pattern in solar variability, their planetary origin and terrestrial impacts,” in which the issue’s editors had the temerity to “doubt the continued, even accelerated, warming as claimed by the IPCC project.”[]According to the original explanation offered by Martin Rasmussen of Copernicus Publications, as reported by JoNova, the expression of this conclusion was a motivating factor for the “drastic decision” to terminate a journal. A letter to one of the editors also expressed “alarm” that a paper in PRP* would question the IPCC.
If Copernicus indeed shuttered a journal because of disagreement with the conclusions expressed in a published paper, it would be quite shameful. But is that what happened? In a revised statement, Rasmussen notes “the editors selected the referees on a nepotistic basis, which we regard as malpractice in scientific publishing and not in accordance with our publication ethics we expect to be followed by the editors.” Whatever the merits of the papers at issue (and even some climate skeptics were unimpressed), it appears that PRP did violate accepted peer review norms in producing the special issue — as Anthony Watts details here — and concerns were raised about the journal last year. So it appears Copernicus did have sufficient grounds to reconsider its production of PRP. Given the wording of Rasmussen’s initial statement, however, questions remain about what prompted the publisher’s decision.
[* The IPCC is the Intergovernmental Panel on Climate Change, a UN-sponsored, intergovernmental entity that produces periodic reports on climate change.]
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It is perhaps worth mentioning that the two teams that made it to the Super Bowl on Sunday represent Colorado and Washington – the two states that recently legalized marijuana. If this somehow helps accelerate the recent decline in public support for the War on Drugs, it will almost be enough to offset my disappointment over the Patriots and Tom Brady losing to longtime rival Peyton Manning. [...]
The post The Pot Bowl appeared first on The Volokh Conspiracy.
I just wanted to thank the many people who helped me with Obsidian Finance v. Cox:
- Benjamin Souede of Angeli Ungar Law Group LLC, our pro bono local counsel for the motion for new trial in district court and for the motion to block plaintiff’s zany attempt to seize the appeal rights.
- Mayer Brown LLP, with which I’m a part-part-part-time Academic Affiliate, and which paid the litigation costs through its pro bono program.
- Helene Siegel of Mayer Brown, for her work with cite-checking and production.
- My colleagues David Babbe, Sam Bray, and Dan Bussel, Loyola (L.A.) professors Karl Manheim, Jay Dougherty, John Nockleby, and Justin Levitt, and recent graduate Dafna Gozani for their help with moot courts for my argument.
- Bruce Brown, Gregg P. Leslie, and Jack S. Komperda, representing the Reporters Committee for Freedom of the Press, and Tom Goldstein, representing SCOTUSblog, for their amicus briefs that supported our position, and Matthew J. Zimmerman and Richard D. Mc Leod, representing the Electronic Frontier Foundation, which filed an amicus brief supporting our motion for new trial.
I very much appreciate all that all these people have done to bring us to Friday’s win. [...]
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So reports the Washington Post (thanks to Prof. Howard (Friedman) Religion Clause for the pointer):
A Germantown mother and another woman accused of killing two toddlers and trying to kill two other children believed that they were releasing demonic spirits that had possessed the siblings, Montgomery County police said Saturday.
The two dead children — a boy, Norell Harris, 1, and a girl, Zyana Harris, 2 — were found Friday morning on their mother’s bed in a Germantown townhouse. Both had been stabbed repeatedly, police said. A sister, Taniya Harris, 5, and a brother, Martello Harris, 8, were seriously injured but are expected to survive.
Police said the women thought that they were performing an exorcism, although it did not appear they had followed any ritual….
Police identified the women as Zakieya L. Avery, 28, the mother, and Monifa Sanford, 21, who lived with the family. Each has been charged with two counts of first-degree murder and two counts of attempted first-degree murder….
Avery, who has received mental health counseling, moved twice in recent years — from Western Maryland to Ohio and then to Montgomery, according to a minister whose church she attended. A relative said she had separated from her husband. Writings on her Facebook page suggest that she believes in God and fears Satan….
In the townhouse community where Avery lived … at least one neighbor saw signs of possible trouble Thursday night. He spotted a child alone in a parked car and called 911, police said. As officers were on the way, two women came out of Avery’s townhouse, told the neighbor to mind his own business, took the child and went back into the home, police said.
When officers arrived, they knocked on Avery’s door but got no response. They didn’t hear or see anything suspicious
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The Guardian (UK) reports:
A man who created a Facebook page poking fun at a revered Greek Orthodox monk has been sentenced to 10 months in prison in Greece after being found guilty of blasphemy…. Filippos Loizos, 28, … used a play on words to portray Father Paisios as a traditional pasta-based dish [pastitsio -EV] ….
Father Paisios, who was revered for his spiritual teachings and was said by some believers to have powers of prophecy, died in 1994.
Loizos had appealed against the ruling and would not be jailed before his case was heard by a higher court, Kleftodimos said.
Here’s what seems to be a copy of the Facebook page:
A reminder that blasphemy prosecutions are, unfortunately, not entirely a thing of the past in Europe. Thanks to Bill Poser for the pointer. [...]
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My thanks again to the VC for lending me the podium this week to talk about The Conscience of The Constitution. I hope you’ll join me—in person or online—on January 30, when I speak about the book at the Cato Institute’s book forum. Then I’ll be participating in February’s Cato Unbound to discuss the debate over “judicial activism” (which takes up chapter 5 of my book).
If you enjoy The Conscience of The Constitution, you might also be interested in my other books, The Right to Earn A Living: Economic Freedom And The Law, and Cornerstone of Liberty: Property Rights in 21st Century America (on sale now for only $7 at the Cato store).
Please also bookmark the Pacific Legal Foundation’s Liberty Blog to follow our litigation in defense of economic liberty and other constitutional rights across the country—including our ongoing challenges to Obamacare, subject of the cover article in this issue of Regulation. Andmy personal blog is Freespace, where I write on various subjects of interest. You can also follow me on Twitter @TimothySandefur. [...]
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I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be heard by a federal court of appeals. The Ninth Circuit will hear the case in a special session in Las Vegas on January 28.
IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*
Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so. [...]
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I have a few upcoming talks that are open to the public and may be of interest to VC readers.
- On January 21, at noon, I will be speaking at the National Constitution Center’s “Affordable Care Act Town Hall” with Simon Lazarus of the Constitutional Accountability Center. Jeff Rosen will moderate our discussion of continuing legal controversies surrounding the ACA and its implementation. This podcast offers a bit of a preview. Registration details here.
- On January 30, at noon, I will be speaking on ACA implementation before the Cleveland Lawyers Chapter of the Federalist Society. Details to follow.
- On January 31, at noon, I will be speaking on “The Conspiracy Against Obamacare: How Academic Bloggers Influenced the Legal Battle Over the Individual Mandate” at the Public Affairs Discussion Group, sponsored by the Center for Policy Studies at CWRU.
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At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:
Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.
The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.
The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….
While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be
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Sunday at 10pm Eastern, Fox News will be rebroadcasting John Stossel’s special, War On The Little Guy, which includes a segment about my lawsuit on behalf of Kentucky entrepreneur Raleigh Bruner.
Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start a moving company in Kentucky, the law requires you to basically get permission from all of the state’s existing moving companies.
The law, called a Certificate of Necessity or CON law, works this way: to run a moving company, you need a license. But when you apply for a license, the law requires you to notify all the state’s moving companies and give them the chance to file an objection. And when an objection is filed, you have to go to a hearing and prove to the government that “existing moving services are inadequate,” and that a new moving company would be consistent with the “present or future public convenience and necessity.” What do these phrases mean? Nobody really knows. In fact, the chief lawyer for the state’s Transportation Cabinet testified under oath that there are “no objective criteria” for deciding what services are “inadequate.” And it’s hard to imagine how bureaucrats can predict “future public convenience.”
But one thing is clear: the law gives bureaucrats almost unlimited power to decide who can and who cannot run a moving business. In the past five years, there have been 39 applications for new moving licenses. Of those, 19 were subjected to protests by one or more existing moving companies, giving a total of 114 protests. You can see an example of a protest here. Note that it doesn’t even suggest that the applicant is unqualified or unsafe or untrustworthy. That’s typical; in fact, since [...]
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Jess Bravin has a report that could be of great interest to the VC readership’s Belieber contingent:
The justices Friday agreed to decide when searching a cellphone requires a warrant—the very kind of evidence that Los Angeles County sheriff’s deputies believe could link the “Believe” singer to the egging of a neighbor’s house.
Deputies searched Mr. Bieber’s Calabasas, Calif., house on Tuesday and seized his iPhone, among other items. The device could contain photos or video related to the egging, authorities think.
But Sgt. Ernie Masson, reached at the sheriff’s Malibu/Lost Hills station, said that while deputies had a search warrant for the Bieber house, he could not say whether it specifically covered the phone.
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Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.
What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism.
Chief Justice William Rehnquist, for example, argued that there is “no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments,” and “no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your [...]
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Last July, Judge Boyce Martin announced his retirement from the U.S. Court of Appeals for the Sixth Circuit. Tonight, TPM reports that Martin made his decision “under a cloud of accusations that he had racked up nearly $140,000 in ‘questionable travel expenses.'”
The details came out in a decision filed by five members of a federal panel on judicial conduct. The decision was in response to a petition filed by Boyce in August asking that his name be kept confidential and that his case not be referred to the Justice Department. Both requests were denied. . . .
Before the investigation could go any further, according to Friday’s decision, Martin submitted his letter of resignation to President Obama. Because of that, the court investigators halted their inquiry and never reached a conclusion about the expenses. . . .
In its decision, the panel wrote that the court’s efforts to disclose Martin’s name and refer his case to the Justice Department’s Public Integrity Section were appropriate under federal rules.
UPDATE: A spokesperson for Judge Martin e-mails to note that Judge Martin had offered to repay all travel reimbursements he had received over the relevant period, not merely those that were in question. This is the source of the $138,500 figure. The spokesperson did not identify the value of those reimbursements that were in question, however. According to the ruling, Judge Martin offered to repay this amount in three installments between June and August 2013, but only the first two payments were ever received.
For those interested in more details on this case, here is yesterday’s ruling and a prior ruling in the matter. Former Sixth Circuit clerk Josh Blackman has also posted a handy timeline of relevant events.
SECOND UPDATE: According to Judge Martin’s spokesperson, he had sent a check to [...]
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[UPDATE: Whoops, Jonathan beat me to it; I’m turning off comments, so people can post on that thread instead.]
So holds Autor v. Pritzker (D.C. Cir. Jan. 17, 2014), a very interesting D.C. Circuit decision just handed down today. (Congratulates to my Mayer Brown LLP colleagues Charles Rothfeld and Joseph Minta, who represent the plaintiffs.) An excerpt (one paragraph break added):
President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.
Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade
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Today the Supreme Court agreed to hear both of the pending cell-phone search cases; as explained here, one case, Wurie, involves an old-style flip-phone, and the second, Riley, involves a modern smart phone. The Court modified the Questions Presented in Riley to match that in Wurie, so the question presented in both is “[w]hether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.”
Why did the Court take both cases instead of just picking one? One reason may be that Riley has more representative facts but Wurie lets the United States play a larger role: As petitioner, DOJ can file a full length merits brief, a reply brief, and get 30 minutes of oral argument, instead of filing an amicus brief and getting the expected 10 minutes of the state’s oral argument time. Alternatively, perhaps the Justices figured that the issue can arise with many different facts, and they figured taking two cases lets them look at the broader issue (see, for example, Miranda v. Arizona). It’s hard to say.
Either way, these cases should be really important and very fun to watch. I expect them to be the first of many computer search-and-seizure cases the Supreme Court will hear over the next few decades. As I wrote in this short essay on the issue raised by Wurie and Riley, “The computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology-specific rules.” The process of engaging in equilibrium-adjustment for the computer world is likely to occupy the Justices for a long time, and my bet is on it leading to a new criminal procedure with many computer-specific [...]
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There’s a lot to absorb in Wednesday’s opinion, but I can’t get past this analysis:
Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants [the government] provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)–(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.
I’m certainly no expert at this point on the relevant provisions, and maybe if I went back and read all the cited language this would make more sense to me. But for now, the idea that “an exchange established by a state” can in practice be “an exchange established by the Federal Government on behalf of a state” seems to me to do violence to the English language. Of course, after C.J. Roberts’ opinion in NFIB, such concerns may no longer be decisive. Or maybe this is why the Democrats were so intent on getting three new nominees on to the D.C. Circuit?
UPDATE: This, from the comments, seems right to me: “A s1321 Fed Exchange is a s1311 Exchange. But it still isn’t a s1311 exchange established by the state, which is what is necessary to get the tax relief. It’s a s1311 exchange established by the Feds, because the state has failed to … establish an exchange.” [...]
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I’ve noted previously, I have a forthcoming paper with former Comptroller of the Currency Robert Clarke that examines competition between payday lending and bank overdraft protection. The central point is easy to grasp–payday lending and overdraft protection are products offered by different providers but which compete for the same customers. And evidence indicates that in choosing between the two products consumers generally choose rationally.
The point came to mind (yet again) reading the Wall Street Journal yesterday, “Hefty Bank Fees Waylay Solders.” According to the article, many members of the military are frequent users of bank overdraft protection, which has caused some concern in some quarters. The article provides no hard evidence that usage of overdraft protection has risen in recent years, but implies that the general impression is that it has.
Assuming that the perception is correct that usage of overdraft protection by military members has risen in recent years, why would that be? Well, how about the enactment of the Military Lending Act in 2007, which imposed a 36% APR cap on payday loans to military members, effectively outlawing payday loans (and some other products for military members):
Congress cracked down with the Military Lending Act, which, starting in 2007, limited to 36% the APR interest on many payday-style loans to military members.
Since then, overdraft programs have replaced payday lending as the leading financial problem for many military personnel, says Adm. Abbot of the Navy-Marine relief society. Some financial institutions serving the military have reined in overdraft fees, he says, while others are engaged in “predatory or punitive overdraft practices.”
Eliminating access to a particular product (payday loans) doesn’t eliminate the need for credit. It is entirely predictable that eliminating payday loans to service members will result in increased use of bank overdraft [...]
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I’ve been following with fascination the overwhelming evidence about brain injuries caused by football. On the one hand, I believe in individual autonomy. On the other hand, I’m not really a fan of football. But I also don’t favor paternalistic policies that limit individuals from undertaking calculated risks. And yet, what about undisclosed risks?
All of that and more is at issue in the complaint brought by over 4,500 former football players who sued the National Football League for damages arising from their injuries. The complaints were consolidated before U.S. District Judge Anita Brody in Philadelphia. The players claim that the NFL was negligent in failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries, including early onset Alzheimer’s and dementia. They claim the NFL knew about these neurological impairments as early as the 1970s and didn’t take any steps to redress these issues until 1994.
On Tuesday, Judge Brody took the unusual step of a issuing a preliminary rejection of the “$760 million over a period of 20 years” reached between the players and the NFL, asking for more detailed financial information, and stating that:
“Judicial review must be exacting and thorough. The task is demanding because the adversariness of litigation is often lost after the agreement to settle….
…I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid. The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. … it is difficult to see how the Monetary Award Fund would have [...]
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So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.
I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that
- libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent
[...]
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Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in Autor v. Pritzker. Here’s how Judge Tatel summarized his opinion for the court:
President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered
lobbyists wishing appointment to one type of advisory committee—Industry Trade Advisory Committees
(ITACs)—challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right—in this case, the First Amendment right to petition government—in order to qualify for a governmental benefit—in this case, ITAC membership—we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.
While the government may be able to defend this policy on remand, the court accepted the appellants claim that the policy effectively conditions eligibility for a valuable benefit (in this case, ITAC membership) on an individual’s willingness to restrict their exercise of his or her First Amendment rights. On remand, the question will be whether the government can assert interests to justify this imposition.
[...]
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If I understand Obama’s new policy on Section 215, he is going to have the Executive Branch ask the judges on the Foreign Intelligence Surveillance Court (FISC) to begin to limit when the Executive can query the Section 215 database. That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words, “I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”
Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive branch of government, they’re in the fancy building with the dome near the Supreme Court. Big building, can’t miss it.
Anyway, maybe I just misunderstood what President Obama said, in which case I will [...]
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Economist Tyler Cowen argues that people too readily dismiss others’ arguments:
One of the most common fallacies in the economics blogosphere — and elsewhere — is what I call “devalue and dismiss.” That is, a writer will come up with some critique of another argument, let us call that argument X, and then dismiss that argument altogether. Afterwards, the thought processes of the dismisser run unencumbered by any consideration of X, which after all is what dismissal means. Sometimes “X” will be a person or a source rather than an argument, of course.
The “devalue” part of this chain may well be justified. But it should lead to “devalue and downgrade,” rather than “devalue and dismiss.”
“Devalue and dismiss” is much easier of course, because there then will be fewer constraints on what one can believe and with what level of certainty. “Devalue and downgrade” keeps a lot of balls in the air and that can be tiresome and also unsatisfying, especially for those of us trained to look for neat, intuitive explanations.
His George Mason Economics Department colleague Bryan Caplan responds that, in reality, most people aren’t dismissive enough:
I’m tempted to object, “Thank goodness for dismissal, because most ideas and thinkers are a waste of time.” But on reflection, Tyler’s overly optimistic. Dismissing ideas often requires rare intellectual discipline. Psychologists have documented our assent bias: Human beings tend to believe whatever we hear unless we make an affirmative effort to question it. As a result, our heads naturally accumulate intellectual junk. The obvious remedy is to try harder to “take out the trash” – or refuse to accept marginal ideas in the first place.
I think both Bryan and Tyler capture some of the truth. When new information or arguments cut against are strongly [...]
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I’m going to try live blogging the President’s remarks today on NSA. I’ve never done this before, so don’t be surprised if the whole thing comes crashing down in the middle.
11:15: The President gives us a few history lessons and a tour of intelligence policies of the last quarter century.
11:19 The President summarizes the impact of 9/11 and the success of the intelligence community in hunting terrorists. The changes in our intelligence programs has been successful, but the risk of abuse grew too.
11:21 The President trashes the past excesses of the previous administration.
11:24 America’s capabilities are unique, President claims. This is not correct. Lots of governments use big data for intelligence collection.
11:25 President appeals to the left, claiming to have stopped abuses and instituted new restraints, then to the right, by saying that the government, including NSA, has not abused its power and has consistently followed protocols to protect privacy.
11:27 “Now that I’m done with drones, it’s time to reform our intelligence community too” Unfortunately, President suggests, Snowden and his sensationalizing leaks have distorted the debate.
11:30 The basic approach guided by this principle: “We must retain the trust of the American people and people around the world.”
11:32 Basic observations: We do have real enemies and we need intelligence to protect the American people. We can’t unilaterally disarm. We’re targeted even by some of the nations that “feigned surprise” and international critics also recognize our special responsibilities. Second, inteligence community understands the risk of abuse. Third, we can’t rely on just the good intentions of government officials.
So far, this is a pretty good lecture, in the Obama style of rejecting straw men and seeking a middle ground at a high level of abstraction.
11:36 The reforms:
A presidential directive setting policy for [...]
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A little while back I read Jonathan Haidt’s book The Righteous Mind: Why Good People are Divided by Politics and Religion and had the opportunity to meet him and hear him speak at a book party in NYC. I’ve been meaning to say a few things about it and the recent appearance of a piece by Haidt in Time magazine prompts it, an article and a quiz that illustrates his points. If you are not familiar with Haidt or his methodology, I encourage you to click over and do the quick 12 question quiz now before reading further; even if you are, you might go ahead and do it anyway because it is fun and will refresh your memory. Go ahead, I’ll wait.
So what’s Haidt’s argument? His basic idea is twofold. First, that people do not rationally choose their ideologies. You do not come into the political arena as a blank slate and then just examine all the moral and consequential arguments for different policies and pick the one that is most “correct.” Instead, you come into the political arena with subconscious, largely unexamined psychological beliefs. Initially for Haidt what he focused on was ideas of “disgust.” Over time that has broadened and he describes five key vectors or values of psychological morality: (1) care/harm, (2) fairness, (3) loyalty, (4) authority, and (5) sanctity. Haidt finds in his research that self-described “conservatives” tend to value all five vectors of morality (as he defines them). Liberals, by contrast, place a high value on “care” and “fairness” and a lower value on loyalty, authority, and sanctity. On the two values that conservatives and liberals both value (care and fairness) they do not define those terms the same way, although they both value them according to their different definitions.
The second part [...]
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I just read a very interesting article, Daniel Sockwell, Writing a Brief for the iPad Judge. The basic problem:
[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.
Why you should care how the judge reads your brief
Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….
And here are the author’s suggestions (reprinted with his permission, some paragraph breaks added):
A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.
Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.
Next, lawyers should carefully consider what font to use in a brief that may be read
[...]
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I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.
Although courts had long expressed reluctance to declare laws unconstitutional, the founding generation had no constitutional theory of judicial restraint. Constitutional avoidance was a pragmatic canon, a sign of respect to the other branches, not a rule of law or a “standard of review” (a concept unknown to the Founders). Anti-court populism came and went in the nineteenth century, but it was not until the Progressive age that judges like Holmes, Frankfurter, and their allies formulated a legal doctrine to the effect that courts were, on principle, unqualified or unauthorized to interfere with the democratic process and obliged to relax constitutional standards accordingly.
(“Democratic,” of course, meant something unique to the Progressives. This was a type of democracy that would consist largely of expert administrators, not accountable to voters; supposed expert bureaucrats immune from actual democratic control, who would administer, rather than govern. The administrative agency is the manifestation of this very special kind of “democracy.”)
The Court devised a general theory of judicial restraint in a series of cases in the 1930s. This story has been told often enough—how, in 1934, in Nebbia v. New York, it abandoned the sixty-year old “affected with a public interest” test for determining the constitutionality of economic regulations and established in its place the “rational basis test” [...]
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The New Hampshire House of Representatives recently became the first state legislative house to pass marijuana legalization. Legalization measures adopted in Colorado and Washington in 2012 passed by referendum. As the above-linked Concord Monitor article notes, the law faces tough sledding in the state senate, and could well be vetoed by New Hampshire’s Democratic Governor Maggie Hassan. Nonetheless, it is an incremental step forward for the cause of legalization, which has been gaining ground in both public and elite opinion in recent years. [...]
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