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The Volokh Conspiracy

Saturday, October 11, 2008

[Jonathan Adler, October 11, 2008 at 10:29am] Trackbacks
"Troopergate" Report Released:

The Alaska legislature's report on Gov. Palin's "Troopergate" scandal was released yesterday. According to the Anchorage Daily News, Palin "abused her power in pushing for the firing of an Alaska state trooper who was once married to her sister, or by failing to prevent her husband Todd from doing so." From the story:

ranchflower's report contains four findings. The first concludes that Palin violated the state's executive branch ethics act, which says that "each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust." . . .

In the second finding, Branchflower says Monegan's refusal to fire Wooten was not the sole reason for his dismissal but that it was a "contributing factor." Still, he said, Palin's firing of Monegan was "a proper and lawful exercise" of the governor's authority.

The third finding says a workers compensation claim filed by Wooten was handled appropriately. Number four concludes that the attorney general's office failed to comply with Branchflower's Aug. 6 request for information about the case in the form of e-mails.

Branchflower writes that his investigation did not take into account late-arriving statements from several administration officials who, on the advice of Attorney General Talis Colberg, resisted subpoenas. They agreed to provide written statements this week, however, after a state judge upheld the subpoenas. Information from those statements was provided to the Legislative Council separately.

In a five-page response issued Friday night, Palin's attorney, Thomas Van Flein, accuses Branchflower and Democratic Sen. Hollis French, who oversaw the investigation, of using the probe in a partisan attempt to "smear the governor by innuendo."

I have not read the 263-page report. Bill Dyer (aka Beldar) has, and offers a critical take here.

6 Comments

[David Post, October 11, 2008 at 10:12am] Trackbacks
So Where DoesThis David Post Guy Teach, Anyway?

During the brouhaha over some of my recent "Sarah Palin is an embarrassment" postings -- I'm quite certain we set the Volokh Conspiracy record for number of comments on a single posting (419 at last count) -- one dubious reader (who shall remain nameless - you can look it up easily enough if you're interested) asked "Are you a real law professor? which school?". Later on in the very same thread, a day or so later, the same reader wrote "I really want to know if Post is a real law prof, and if so, where." And he/she asked the identical question on a different comment thread attached to one of my other postings a couple of days later.

What's interesting about this is that the reader didn't, of course, really want to know where I teach law. If he/she really wanted to know that, he/she would have taken the 1.8 seconds it takes these days to answer questions like that; you go to Google, you type in David Post (or better - "David Post Bio"), and you find the answer to your question. (Not to mention that we have links on the side of the VC page directing you to our bios). No, he/she didn't want to know the answer to the question, he/she wanted everyone else to know that he/she was asking the question. Meta-communication, as it were -- "by asking this question, I am signalling to you all that I think David Post is a dope."

There are many interesting things about this. It's one of the subtle ways that Google is transforming the way we talk to one another. I've noticed this same meta-communication thing -- which should have its own name, I think -- in my conversations with friends over the past several years. I participate in a very active, and quite marvelous, e-mail listserv with about 15 of my close friends from college. On the rare occasions we're together face-to-face, conversation will include questions like "What was the name of that retarded guy in To Kill A Mockingbird who was charged with the murder?", or "Was it Mondale? Bentsen? someone else? who came up with that "Where's the Beef" line in one of the debates a while back?", or "Was "I've Just Seen a Face" on Revolver or Rubber Soul?" We used to ask questions like that on the listserv, too -- but no longer. They're only useful as meta-communication now -- in the time it takes to write out the message, you can get the answer from the network, so why bother? Now that information-gathering is so easy, communication that once had an information-gathering function has to serve some other function, or it will disappear.

It's also interesting to ask whether, or in what circumstances, this might actually be an effective rhetorical device? Why might it be more effective to imply that David Post is a dope this way -- hey, where does this guy teach, anyway? -- than to just say it (hey, Prof. Post, you're a dope)? I suspect there's a tinge of elitism here -- the reader was, presumably, hoping that the answer would be "Shitsville University Law School" so he/she could say -- well, what do you expect from such a dope. But you wouldn't think it would be effective in this context, where all of the other readers have the same 1.8 second task if they want to actually get an answer to the question.

Mind you, I don't think this is a bad development, or a good development - it's just an "is" development, the way things now are to which we are all necessarily adjusting.

[Can't even wait 1.8 seconds to find out the answer to the question? Click here.

]
5 Comments

[Jonathan Adler, October 11, 2008 at 9:41am] Trackbacks
Sixth Circuit Sides with Ohio SoS; Vacates Injunction:

Last night, the U.S. Court of Appeals for the Sixth Circuit, 2-1, vacated the district court's injunction requiring Ohio Secretary of State Jennifer Brunner to make efforts to verify voter registration information. The Columbus Dispatch reports:

The three-judge panel of the 6th U.S. Circuit Court of Appeals said Brunner is not required to provide county elections boards with the names of voters whose personal information does not match state motor-vehicle or federal Social Security records, as ordered Thursday by U.S. District Court Judge George C. Smith of Columbus.

Brunner had sought an emergency order delaying Smith's order, and the appeals court agreed with Brunner that federal law does not require her to provide the names and that the Nov. 4 election is too close for major policy changes.

The panel noted that the process of matching voter information with state and federal records has been in place since 2007, and that the details about mismatches are available to counties on individual voter records, even if not in one list. . . .

Judge Richard Allen Griffin dissented, saying the three-judge panel should not have acted so quickly and that Brunner's "lack of concern for the integrity of the elections process is astounding and deeply disturbing."

More here.

5 Comments

Friday, October 10, 2008

[Ilya Somin, October 10, 2008 at 7:08pm] Trackbacks
Why I'm Concerned About an Obama Victory:

Ross Douthat summarizes my main reason for fearing what now looks like a near-certain Obama victory. And it has nothing to with with Bill Ayers, Jeremiah Wright, or any of Obama's other personal foibles or past associations. It certainly isn't based on any great love for John McCain, who I have many reservations about. For what it's worth, I like the idea of a black president, believe that Obama is an admirable person in many ways, and have doubts about McCain's temperament similar to those expressed by George Will. Nonetheless, I fear that the conjunction of an Obama victory, a strongly Democratic Congress, and a major economic crisis will produce a massive and difficult to reverse expansion of government:

[W]hile success is never final, some successes are more final than others. The election of Franklin Delano Roosevelt in 1932 gave birth to an administrative state that has never been rolled back, and seems unlikely be rolled back in my lifetime. So that was a pretty final victory, as political victories go. Or again, while Ronald Reagan's election in 1980 had less enduring consequences than FDR's, at the very least it put its stamp on thirty years of American history in a way that, say, the election of Jimmy Carter or George H.W. Bush did not. And the convergence of an economic crisis and complete Democratic control of Washington should alarm even those conservatives eager to wash their hands of the GOP. The best reason for even the most disaffected right-winger to root for a McCain victory is simple: To the extent that much of the progressive agenda is a program in search of a crisis to justify its implementation, an election that delivers a liberal candidate who's adored by the media to White House, gives him huge majorities in both houses of Congress, and presents him with a worldwide state of emergency in which to govern, has the potential to be not just another loss for conservatives, but a once-in-a-generation defeat.

We know from past history that economic crises are a major opportunity for expansion of government power. Robert Higgs' book Crisis and Leviathan is a good discussion of the basic dynamics. We also know that divided government tends to impede the growth of the state, while united government facilitates it. The combination of united government and a major economic crisis is likely to lead to a great expansion of government, just as it did on several previous occasions such as the 1930s. It only remains to add that Obama - and most of the rest of the Democratic Party - tend to be very pro-government ideologically. As far as I can tell, Obama proposes major expansions of government regulation and spending on almost every big domestic issue, and doesn't propose to retract government in any significant way, except on military intervention in Iraq. Obama's record in the Senate (where he was the 10th most liberal senator) and in the Illinois state legislature (where he was more liberal than 73% of his fellow Democrats) shows him to be a big government liberal, not a relative moderate like Bill Clinton during his presidency.

I say this not so much to rally support for McCain (whose candidacy I think is nearly dead anyway), as to outline my fears about what is likely to happen over the next four years. I understand, of course, that none of this is a problem for those who want a major expansion of government power or are at least indifferent to it. But I do think it should be of concern to those libertarians or small government conservatives who welcome an Obama victory. It should also matter to moderates and liberals who recognize that massive expansions of government power in a time of crisis provide major opportunities for abuses of power and interest group power grabs at the expense of the general public - both of which happened on a large scale during the Great Depression.

Obviously, nothing is certain. It could be that Obama's agenda will be derailed by a massive political blunder on his part or by some unexpected event. It could be that the Republicans will somehow come back strong in the 2010 midterm elections. It could be that the economy will recover very quickly, curtailing Obama's window of opportunity. I'm not certain that a major expansion of government will actually occur if Obama wins. But I do think it's a strong possibility - certainly a greater than even chance.

UPDATE: University of San Diego lawprof Michael Rappaport, who was previously inclined to conclude that an Obama victory was the lesser of the available evils, is now seems to be changing his mind because of concerns similar to those expressed in this post. He writes:

With the financial crisis we are facing, an Obama Presidency combined with a strongly Democratic Congress would be much worse than the situation we were previously facing. Thus, it makes more sense to avoid it, even if it means electing McCain and all the damage that will do.

To put the point differently, before the financial crisis, there was a realistic chance that electing Obama and a Democratic Congress would be Jimmy Carter in 1976 or Bill Clinton in 2000 [correction: presumably he means 1992 - IS] — presidencies that soon led to Ronald Reagan and Newt Gingrich. But with the financial crisis, there is a much greater chance that electing Obama and the congressional Democrats will be like electing FDR in 1932. Obama could use the emergency to transform the country in a very bad way. And, given the crisis and Obama's political skills, it is quite possible that the country would reelect him, even if he does badly — which, after all, is what happened when FDR was reelected during the New Deal in 1936. (In 1936, the unemployment rate was still 17 percent.)

I haven't made up my mind yet. After all, McCain really is awful. But that is the way I am leaning.

160 Comments

[Jonathan Adler, October 10, 2008 at 5:47pm] Trackbacks
A Buckley for Obama:

Christopher Buckley endorses Barack Obama (and prays that his father cannot spank him from beyond the grave).

I’ve read Obama’s books, and they are first-rate. He is that rara avis, the politician who writes his own books. Imagine. He is also a lefty. I am not. I am a small-government conservative who clings tenaciously and old-fashionedly to the idea that one ought to have balanced budgets. On abortion, gay marriage, et al, I’m libertarian. I believe with my sage and epigrammatic friend P.J. O’Rourke that a government big enough to give you everything you want is also big enough to take it all away.

But having a first-class temperament and a first-class intellect, President Obama will (I pray, secularly) surely understand that traditional left-politics aren’t going to get us out of this pit we’ve dug for ourselves. If he raises taxes and throws up tariff walls and opens the coffers of the DNC to bribe-money from the special interest groups against whom he has (somewhat disingenuously) railed during the campaign trail, then he will almost certainly reap a whirlwind that will make Katrina look like a balmy summer zephyr.

Obama has in him—I think, despite his sometimes airy-fairy “We are the people we have been waiting for†silly rhetoric—the potential to be a good, perhaps even great leader. He is, it seems clear enough, what the historical moment seems to be calling for.

So, I wish him all the best. We are all in this together. Necessity is the mother of bipartisanship. And so, for the first time in my life, I’ll be pulling the Democratic lever in November. As the saying goes, God save the United States of America.

78 Comments

[Jonathan Adler, October 10, 2008 at 4:35pm] Trackbacks
Palin on SNL?!?

The New York Post reports that Sarah Palin will appear on Saturday Night Live on October 25th. No word on whether Tina Fey plans to campaign with John McCain.

23 Comments

[Ilya Somin, October 10, 2008 at 4:34pm] Trackbacks
Why So Many Law Professors are Former High School Debaters:

Notre Dame [correction: University of North Dakota] lawprof Eric Johnson notes that many law professors seem to be former high school debaters and suggests that this may be a common phenomenon. For what it's worth, I'm a former high school debater myself (1 year of policy, 3 years of L-D). My anecdotal impression is that there is a high representation of ex-debaters not only among law professors but also among other social science and humanities scholars.

Why do so many former debaters end up in academia? For the most part, it's probably correlation rather than cause. Both debate and academia tend to attract highly intellectual people with an interest in politics, law and related subjects. But there may be a causal connection as well. Debate played an important role in making me comfortable with public speaking - which turned out to be very valuable in later years. And for reasons I discussed here, it also led me to work much harder in school, thereby rescuing my floundering academic record and enabling me to get into an elite college (without which I might never have made it to Yale Law School later). These experiences may be atypical. But I suspect they parallel those of at least some other debaters-turned-academics.

On the other hand, I have to say that at my school, unlike Johnson's, debaters didn't usually hang out with "the cheerleaders and football players." Whether that helped my later career as a lawprof or not is hard to say. On balance, I continue to believe that the real enemies of debaters and other highs school "nerds" were the popular crowd, not the much-maligned jocks.

15 Comments

[Ilya Somin, October 10, 2008 at 4:00pm] Trackbacks
Do Law Students Hate Law School Textbooks?

During many semesters, I have my students do an anonymous mid-semester survey that evaluates the strengths and weaknesses of the course. Sometimes, the mid-semester survey reveals weaknesses in my teaching methods that are important for me to recognize, even if unpleasant for me to read about.

The most interesting finding of my mid-semester surveys is not about my personal strengths and weaknesses, but those of law school textbooks. Unlike most standard student evaluation forms, my midsemester surveys allow students to give a separate rating for the textbook. Routinely, those ratings are far from flattering to the texts. Cynics might suggest that the textbooks' ratings are driven down by my own ratings. To that reasonable conjecture, I respond that the textbooks' scores are routinely a lot lower than those the students give to me. Even when I have an unusually bad semester, the textbooks usually do even worse.

Why do so many students dislike the textbooks? It's hard to know for sure. On my surveys, students have an opportunity to write comments explaining their ratings. The most common complaints in the comments about the textbooks are that they are either boring or inaccessible (i.e. - don't explain the material very well).

Two caveats apply. First, I have only done these surveys with respect to textbooks in constitutional law and property. It may be that textbooks in other fields are more popular with students. I am fairly confident, however, that the ratings do accurately reflect the two fields I teach in, since the books I use are routinely among the market leaders at elite law schools.

Second, while I don't believe that my ratings are driving down those of the books (because they are actually much higher than the books' scores), I can't rule out the possibility that part of the problem is rooted in the interaction between my teaching style and the textbooks' approach. Perhaps students like the textbooks more with professors who "teach to the book" to a greater extent than I do. Ultimately, I doubt that such factors account for more than a small fraction of my students' dissatisfaction with their textbooks. But it's hard to know for sure.

To readers with relevant expertise, I pose two questions:

1. Is it in fact true that law students dislike law school textbooks, or is my experience idiosyncratic?

2. If so, why is that? Are boredom and inaccessibility the real culprits? Or is something else at work?

Particularly welcome would be systematic evidence of student attitudes to law textbooks, such as from large-scale surveys or experiments. Anecdotal evidence is useful, too, of course. But it's often hard to tell if it's representative of a broader trend.

61 Comments

[Ilya Somin, October 10, 2008 at 2:39pm] Trackbacks
Conservatism, Anti-Intellectualism, and the Political Failures of the Republican Party:

Jonathan Adler links to David Brooks' op ed arguing that conservative politics has gotten too anti-intellectual. Some of Brooks' points, are I think, well-taken. It is true that Republican politicians often engage in crude intellectual-bashing and that some conservatives embrace ridiculous unscientific ideas, such as denial of evolution in favor of more extreme forms of creationism. Jonathan, in turn, rightly points out that aspects of conservatism - including free market economics - will always have limited appeal to intellectuals.

At the same time, it is far from clear that conservatives are suffering politically because they have lost the support of the more educated classes, as Brooks contends. To the contrary, survey data continue to show that Republican voters, on average, have higher education levels than Democrats do. For example, the 2004 National Election Study (data summarized in Table 7.4 here), show that 45% of college graduates self-identify as Republicans or Republican-leaning independents, as do 44% of those with "some" college education. By contrast, only 38% of high school graduates and 20% of those with only a grade school education identify as Republicans. Self-identified "strong Republicans" also have, on average, higher levels of political knowledge than self-identified "strong Democrats." I hasten to add that I do not believe that Republicans tend to be more educated and knowledgeable because education and knowledge necessarily lead people to embrace conservative ideas. The most likely explanation for the correlation between education, political knowledge, and Republican identification is simply that education and knowledge are also highly correlated with income. And we know from many studies, such as Andrew Gelman's excellent recent book, that income is a strong predictor of Republican identification and voting.

Nonetheless, it's hard to argue, as Brooks does, that the Republican Party is slipping because it appeals mostly to the ignorant and uneducated. The real reason for the party's recent electoral setbacks is that voters from a wide range of income classes blame it (with some justice) for the mishandling of the Iraq War, the poor condition of the economy, and other policy failures. Republican politicians who think that political impact of these failures can be offset by ramping up their attacks on intellectuals and "coastal elites" are probably mistaken. But so too are those who think that the party's problems can be solved by increasing its appeal to what Brooks calls "the educated class."

Related Posts (on one page):

Conservatism, Anti-Intellectualism, and the Political Failures of the Republican Party: Brooks on Conservative Anti-Intellectualism:
83 Comments

[Orin Kerr, October 10, 2008 at 2:11pm] Trackbacks
Did Monitoring Satellite Phones in the Middle East Violate the Fourth Amendment?: Over at Balkinization, Marty Lederman has a post arguing that the recently-discovered monitoring of satellite phones in the Middle East violated the Fourth Amendment:
The leading — indeed, virtually the only — case on the question indicates that the E.O. 12333 requirement that the U.S.-person target of such overseas surveillance be an agent of a foreign power, is also a Fourth Amendment minimum. That court held that such surveillance of U.S. persons overseas can be done without a warrant only (i) when authorized by the President or the Attorney General; (ii) when conducted primarily for foreign intelligence purposes; and (iii) when targeted at foreign powers or their agents, including American citizens believed to be agents of a foreign power. See U.S. v. bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000).

Assuming that some or all of that holding is correct, then the NSA activity described by ABC News would appear to violate the Fourth Amendment, too, even if it did not violate FISA.
  I think Marty is wrong, and that the monitoring probably did not violate the Fourth Amendment even if you accept the bin Laden case.

  (1) First, it appears from news reports that most of the monitoring was of members of the military using military-provided phones, and that users were notified that the phones would be monitored. This monitoring was clearly constitutional, as the notice waived an expectation of privacy under O'Connor v. Ortega and no warrant would be required under Title III, a precondition to FISA's warrant requirement.

  (2) Second, monitoring of individuals who were not U.S. citizens, permanent residents, or otherwise had strong connections to the U.S. would not implicate the Fourth Amendment under United States v. Verdugo-Urquidez.

  (3) Ok, but what about any U.S. citizens who were monitored abroad who were not in the military and not agents of a foreign power? At this point, it's important to keep in mind that the monitoring was of satellite phones, phones that work by broadcasting signals directly to communications satellites. There are no cases on how the Fourth Amendment applies to monitoring of satellite phones, but there are a bunch on how the Fourth Amendment applies to cordless phones. Here's what I wrote on the issue in my computer crime casebook:
  In the 1980s, telephone companies began selling cordless telephones to consumers. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset. Each phone has two radio transmitters that work at the same time: the base transmits the incoming call to the handset, and the handset transmits the outgoing call to the base. Before the mid-1990s, cordless phones generally used analog FM signals that were easy to intercept. Government agents would occasionally listen in on the cordless telephone calls of suspects without a warrant by intercepting the signals using widely available FM radio scanners. In your view, should such surveillance be prohibited by Katz v. United States or permitted by Smith v. Maryland?
  Courts relied on Smith v. Maryland to reject claims of Fourth Amendment protection in the contents of such cordless telephone calls. Because cordless phone intercepting devices merely pick up a signal that has been “broadcast over the radio waves to all who wish to overhear,†the interception was held not to violate any reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236, 1239-40 (6th Cir. 1995). See also Tyler v. Berodt, 877 F.2d 705, 707 (8th Cir. 1989); Price v. Turner, 260 F.3d 1144, 1149 (9th Cir. 2001). Courts reached the same result when the suspect was using a traditional landline telephone, and happened to be engaged in conversation with someone who was using a cordless phone. See United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995).
  Although there are no cases on it, I think there's a decent argument that the same argument would apply to satellite phones. There are arguments against, to be sure — arguments that I am certain commenters will make in the comment threads. But the reasoning of those cases is pretty broad.

  Anyway, for those reasons I think the monitoring here probably didn't violate the Fourth Amendment, even if we accept Judge Sand's opinion in the bin Laden case.

UPDATE: Marty responds here.
46 Comments

[Jonathan Adler, October 10, 2008 at 1:49pm] Trackbacks
Brooks on Conservative Anti-Intellectualism:

David Brooks' column today is a must read, particularly for us right-wing, would-be-intellectual types. A few excerpts:

Modern conservatism began as a movement of dissident intellectuals. . . . William F. Buckley famously said he’d rather be governed by the first 2,000 names in the Boston phone book than by the faculty of Harvard. But he didn’t believe those were the only two options. His entire life was a celebration of urbane values, sophistication and the rigorous and constant application of intellect.

Driven by a need to engage elite opinion, conservatives tried to build an intellectual counterestablishment with think tanks and magazines. They disdained the ideas of the liberal professoriate, but they did not disdain the idea of a cultivated mind. . . .

But over the past few decades, the Republican Party has driven away people who live in cities, in highly educated regions and on the coasts. This expulsion has had many causes. But the big one is this: Republican political tacticians decided to mobilize their coalition with a form of social class warfare. . . .

What had been a disdain for liberal intellectuals slipped into a disdain for the educated class as a whole. The liberals had coastal condescension, so the conservatives developed their own anti-elitism, with mirror-image categories and mirror-image resentments, but with the same corrosive effect. . . .

The political effects of this trend have been obvious. Republicans have alienated the highly educated regions — Silicon Valley, northern Virginia, the suburbs outside of New York, Philadelphia, Chicago and Raleigh-Durham. The West Coast and the Northeast are mostly gone.

The Republicans have alienated whole professions. Lawyers now donate to the Democratic Party over the Republican Party at 4-to-1 rates. With doctors, it’s 2-to-1. With tech executives, it’s 5-to-1. With investment bankers, it’s 2-to-1. It took talent for Republicans to lose the banking community. . . .

And so, politically, the G.O.P. is squeezed at both ends. The party is losing the working class by sins of omission — because it has not developed policies to address economic anxiety. It has lost the educated class by sins of commission — by telling members of that class to go away.

I think Brooks makes several important and valid points about conservative anti-intellectualism. Just think about how otherwise intelligent conservatives embrace unscientific critiques of evolutionary theory and celebrate (instead of simply excuse) Gov. Palin's lack of academic credentials. It may well be the case that the smartest and most educated political candidates may not make the best political leaders, but this hardly makes the lack of formal education or intellectual curiosity a qualification in itself.

I also think Brooks overlooks something quite important. Some of the central ideas in modern conservatism — such as the impossibility of central economic planning, the nature of spontaneous order, and the idea that longstanding social traditions embody vast stores of social learning — are inherently hostile to certain intellectual conceits, particularly the idea that if only the right people were in charge (the intellectuals themselves) most social problems could be solved. Further, most modern conservatives embrace an economic system — free-market capitalism — that does not reward intellectual achievement at the level many intellectuals would prefer. Thus, while conservatism does not need to be (and should not be) anti-intellectual, there may be a limit to the extent to which intellectuals, as a class, will embrace modern conservative ideas.

Related Posts (on one page):

Conservatism, Anti-Intellectualism, and the Political Failures of the Republican Party: Brooks on Conservative Anti-Intellectualism:
106 Comments

[Dale Carpenter, October 10, 2008 at 12:59pm] Trackbacks
Gay marriage in Connecticut:

The Connecticut Supreme Court has just ruled that the state must recognize gay marriages, making it the third state (all by court decision) to do so. The Connecticut legislature had already created civil unions for same-sex couples, so the question in the case was whether there was any basis in the state constitution to refuse to call these legally equivalent relationships "marriages." It was very much the same issue in the California marriage decision from last May. I have not yet seen the Connecticut decision, and will have more to say later if it seems worthwhile.

Needless to say, the timing of the decision is awkward for gay-marriage supporters trying to fend off SSM bans on the November 4 ballot in Arizona, California, and Florida. Stoking resentment of judicial activism, the Connecticut Supreme Court has at the very least probably increased the likelihood that Prop 8 will pass in California.

UPDATE: Orin has a link to the opinions below. The basis for the decision -- that some heightened scrutiny (here, intermediate) applies to classifications based on sexual orientation, and that the limitation of marriage to opposite-sex couples can't meet the heightened standard -- is similar to part of the California court's rationale. Connecticut becomes the second state to apply heightened scrutiny to discrimination against gays, a significant development independent of the gay-marriage ruling.

73 Comments

[Orin Kerr, October 10, 2008 at 12:58pm] Trackbacks
Connecticut Supreme Court Finds Same Sex Marriage Right in State Constitution: The vote was 4-3, with a majority opinion and three dissents. Howard Bashman has the links here. From the majority opinion:
  We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.
17 Comments

[Orin Kerr, October 10, 2008 at 12:48pm] Trackbacks
The Speculation Economy: In light of the recent news on Wall Street, I've been reading my colleague Larry Mitchell's new book, The Speculation Economy: How Finance Triumphed Over Industry (also available soon in paperback). It's about the creation of the modern corporation and the rise of the stock market in the late 19th and early 20th century. Mitchell argues that changes at the time made stock prices and finance a higher priority than the health of companies, creating the seeds of a speculation-based economy. Mitchell is more more inclined toward market intervention than most VC readers will be, but it's still an interesting read and certainly a timely one.
10 Comments

[Dale Carpenter, October 10, 2008 at 12:21pm] Trackbacks
Assessing the legal claims in the campaign for California's Prop 8:

There certainly seems to have been a recent reversal of fortunes in the ballot fight over California's Proposition 8, which would eliminate marriage for gay couples in the state if voters approve it on November 4. Supporters of Prop 8 are now more than $10 million ahead in fundraising. And where polling through September showed Prop 8 losing by as much as 14%, it now shows Prop 8 ahead by 47% to 43%. Even this probably understates the true support for Prop 8 since past experience shows that polls are about 5-10% off in measuring support for gay-marriage bans.

What happened? Credit is being given to the TV ads running in support of Prop 8. The first of these ads, and the one containing the most substantive legal claims so far, is this one:

This page contained an embedded video. Click here to view it.

Rather than attacking gay marriage itself, the ad focuses on the asserted collateral effects of allowing gay couples to marry. It's not that gay marriage itself is so bad, or is some sort of threat to the institution of marriage, it's what it might lead to that's terrible. To support such fears, the ad relies on a law professor, Richard Peterson of Pepperdine, who lends an air of legitimacy to the claims. It is his assertions, and the legal basis for them, that I want to examine here.

"People sued over personal beliefs"

The notion that people will be sued simply for believing — or even for publicly saying — that SSM is wrong is completely unfounded. There is no statutory basis for such a suit at either the state or federal level. If there were, it would be plainly unconstitutional under the First Amendment.

The ad implies a somewhat different fear: that people who act of their "personal beliefs" opposing gay marriage will face lawsuits. The only support for this softer version of the claim given in the ad is a recent decision from the California Supreme Court, North Coast Women's Care Medical Group Inc. v. San Diego Superior Court, which held that state-licensed doctors may not refuse treatment based on their religious objections to providing that treatment (in this particular case, to a lesbian seeking assisted reproduction). Whatever one thinks of the result in the case, or of the state statutory policy and constitutional principles underlying it, it had nothing to do with gay marriage. It was based on California's Unruh Civil Rights Act, which prohibits discrimination in public accommodations and services on the basis of sexual orientation. That law long predates gay marriage and will survive after November 4 no matter the outcome of the Prop 8 fight. Whether gay couples can marry, the only issue on the ballot, has nothing to do with whether people may be sued for their personal beliefs, or whether they may be sued for acting on them in the provision of services to the public.

We have now had gay marriage in Massachusetts for more than four years. There are no cases in which people have been hauled into court solely for their personal opposition to it.

"Churches could lose their tax exemption"

There is no basis for believing that gay marriage will cause churches to lose their tax exemptions. Recall that in exchange for agreeing not to be directly involved in elections, and agreeing not to endorse candidates for public office, churches are exempt from state and federal property and income taxes. Donations to churches are also tax deductible. If churches want to engage in direct electioneering, they are free to do so — but they must give up these huge tax advantages.

But what does gay marriage have to do with any of this? The ad cites only an article by Robert Dekoven in the Gay & Lesbian Times. DeKoven, a law professor at California Western, warned that if religious denominations became too heavily involved in the campaign for Prop 8 (and in another proposition battle in California dealing with abortion) they might lose their "public subsidy" on the ground that they are using it for political rather than religious and charitable purposes. I'm not sure whether Dekoven is right about that as a matter of tax law. But I am sure that the issue will be resolved — if it is even investigated by state or federal tax authorities — by reference to long-standing policies and practices regarding religious institutions' involvement in political campaigns regardless of the underlying substantive issues involved in those campaigns. In short, the continuing tax-exempt status of churches involved heavily in ballot fights will be decided independently of whether gay couples can marry, and independently of whether Prop 8 passes or fails.

Again, after four years of experience in Massachusetts, no church has lost its tax exemption because of gay marriage.

"Gay marriage taught in public schools"

Of the three charges made by Professor Peterson in the ad, this is the most explosive and the most resonant with the history of anti-gay discourse. The mix of children and homosexuality is politically toxic, drawing on very widespread parental anxieties. The unstated fear is two-fold: that children will be recruited or lured ("taught") into homosexuality and that homosexuality is itself bad/immoral/unhealthy.

Leaving discussion of those fears for another day, is there anything to the idea that California's schools will have to "teach" gay marriage if Prop 8 fails? The ad relies on a provision of the California Education Code, §51933, which it quotes as mandating that "Instruction and materials shall teach respect for marriage." Presuming that teaching respect for marriage will mean teaching respect for all legal marriages, including same-sex ones, we have then the teaching of gay marriage to all of California's schoolchildren, presumably against the wishes of many parents.

But there are numerous problems with this conclusion. No school district in California is required to teach anything about marriage to any child. The requirement, along with other provisions that mandate an emphasis on abstinence and consultation with parents about sexual matters, comes into play only if the school district chooses to have age-appropriate instruction on "sexual health education." The ad doesn't mention that the provision also mandates the teaching of respect for "all committed relationships" in addition to marriage, which presumably includes respect for committed same-sex relationships. Thus, regardless of the outcome of Prop 8, schoolchildren may already be instructed on the worth of gay families under existing policy. Even if the school district elects to to teach sex ed, the requirement to teach "respect for marriage" is vague and spacious. A school district or teacher could simply inform students that marriage is good and valuable and leave it at that, without mentioning what sorts of couples can marry or how their right to marry came about. That hardly constitutes a state requirement to "teach gay marriage" in the schools.

That's not all. Even if a school district in California elected to teach schoolchildren that gay couples can marry, a fact they are likely to have learned anyway from living in the state, parents are entitled to have notice that sex ed instruction will occur and are entitled to withdraw their children from such classes. Cal. Educ. Code §51937-51939. Under §51938, "A parent or guardian of a pupil has the right to excuse their child from all or part of comprehensive sexual health education, HIV/AIDS prevention education, and assessments related to that education . . . ." This serves the legislative view that "parents and guardians have the ultimate responsibility for imparting values regarding human sexuality to their children." Cal. Educ. Code §51937.

Furthermore, private religious schools are completely exempt from the general state eduction requirement that schools not discriminate on the basis of sexual orientation. Cal. Educ. Code §220.5.

In short, whether or not gay marriage continues, and whether or not Prop 8 passes, individual school districts and parents will retain ultimate control over whether and what children are taught about gay relationships and marriages. If they fail to exercise that authority in conformity with their beliefs, that failure can hardly be blamed on gay couples who want to be married.

It's true, as alleged in a second ad produced by supporters of Prop 8, that schoolchildren in Massachusetts have been informed that gay couples are permitted to marry. The second ad, also narrated by Professor Peterson, cites a First Circuit case rejecting parents' First Amendment and substantive due process claims to an exemption from classroom instruction. Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). That may or may not be right as a matter of federal constitutional law, but the underlying issue is the narrow exemption provided in Massachusetts law relating to parental notice and exemption from classroom instruction on sex education. In contrast to California, Massachusetts does not provide as much local school district control and does not include the same exemptions for discussion of marriage.

So, unlike in Massachusetts, whether California's little princesses are taught in schools that they have a right to marry other little princesses (a specter tenderly raised in the second Prop 8 ad) depends in the final analysis on whether that's what their individual school districts and parents permit them to be taught. In some school districts, say San Francisco, parents probably won't mind such instruction. In others, say Bakersfield, they will. Pluralism, not gay-marriage propaganda, will reign if that's what parents demand.

The ads supporting Prop 8 have apparently been effective at persuading some Californians who might not otherwise object to same-sex marriage that their religious liberty and the upbringing of their children are in danger. The exploitation of these fears in the Prop 8 ads continues a pattern in which SSM opponents falsely assert that "gay marriage" has caused some erosion of religious and personal liberty based on legal claims that have little or nothing to do with gay marriage. I discussed a number of such false assertions in a post back in June. As with the similar claims made back then, the ones generating fear in the Prop 8 campaign now are at the very least unfounded or misleading, and at worst, they are outright false.

51 Comments

[Jonathan Adler, October 10, 2008 at 11:36am] Trackbacks
Is Voter Registration Fraud Unavoidable?

ACORN is aggressively seeking to sign up new voters here in Ohio. In the process, they are also submitting many false, duplicative, or fraudulent registration forms — and there's nothing they can do about it, ACORN claims.

The Association of Community Organizations for Reform Now, or ACORN, has turned in at least 65,000 cards to the Cuyahoga County Board of Elections in the last year. The board has investigated potentially fraudulent cards since August.

The group has faced similar inquiries in other large Ohio counties. And Nevada state authorities recently raided ACORN's Las Vegas headquarters searching for evidence of fraud, according to the Associated Press.

Local representatives of the organization told Cuyahoga board members that they don't have the resources to identify fraudulent cards turned in by paid canvassers who are told to register low- and moderate-income voters.

It can't be stopped? How about not paying canvassers based upon how many people they register? How about telling canvassers not to pressure people to register multiple times? How about telling canvassers not to offer bribes — cigarettes, booze, rides, etc. — in return for registration? Of course actual voter fraud is more important than registration fraud, but registered dead people do vote sometimes, and absentee voter fraud is facilitated by voter registration fraud.

Meanwhile, a federal court has ordered Secretary of State Jennifer Brunner to implement a system to verify voter registration information when it fails to match up in database checks, and Palestra.net's Tiffany Wilson wants to know how Brunner will combat potential voter fraud here in the Buckeye State.

UPDATE: The New York Post reports on one mean in Cleveland who registered 72 times:

"Sometimes, they come up and bribe me with a cigarette, or they'll give me a dollar to sign up," said Freddie Johnson, 19, who filled out 72 separate voter-registration cards over an 18-month period at the behest of the left-leaning Association of Community Organizations for Reform Now.

"The ACORN people are everywhere, looking to sign people up. I tell them I am already registered. The girl said, 'You are?' I say, 'Yup,' and then they say, 'Can you just sign up again?' " he said.

Johnson used the same information on all of his registration cards, and officials say they usually catch and toss out duplicate registrations. But the practice sparks fear that some multiple registrants could provide different information and vote more than once by absentee ballot.

70 Comments

[Jonathan Adler, October 10, 2008 at 10:47am] Trackbacks
Adler Planetarium Defends Earmark:

Chicago's Adler Planetarium (no relation) was not happy to have its request for a $3 million congressional earmark to fund a projector derided by Senator John McCain.

The first planetarium in the Western hemisphere, the Adler, took exception to it being used as an illustration of government waste in comments made by Republican presidential candidate John McCain during the Oct. 7 presidential debate.

When expressing opposition to earmarks, McCain said: “While we were working to eliminate these pork barrel earmarks he [Senator Obama] voted for nearly $1 billion in pork barrel earmark projects. Including $3 million for an overhead projector at a planetarium in Chicago, Illinois. My friends, do we need to spend that kind of money?â€

The Adler issued a statement to clarify that the Planetarium made an unsuccessful request to several legislators for federal support to replace the projector in the 78-year-old public facility’s Sky Theater. The projector had been replaced just once before, in 1969.

“The Adler’s Zeiss Mark VI projector – not an overhead projector – is the instrument that re-creates the night sky in a dome theater, the quintessential planetarium experience,†the organization said in a written statement. “The Adler’s projector is nearly 40 years old and is no longer supported with parts or service by the manufacturer. It is only the second planetarium projector in the Adler’s 78 years of operation.â€

I fully agree that it is a bit dismissive to characterize this as a request for an "overhead projector," and the Adler Planetarium is a premier facility (and has a great name), but I still think it is fair to ask whether this is something the federal government should fund.

68 Comments

[Jonathan Adler, October 10, 2008 at 10:38am] Trackbacks
"McCain 2 Old":

On I-77 just south of Cleveland there is a billboard with a drawing of Senator McCain, his name, and "2 Old" in big block letters. The billboard says it is sponsored by a "Neo Neo Inc." in New York. I tried to find out more about the ad and its sponsor online, but have not yet turned up much of anything.

UPDATE: Here's a photo.

12 Comments

[David Post, October 10, 2008 at 10:23am] Trackbacks
Lightening Up:

A genre of humor of which I was previously unaware (courtesy of my daughter): elementary particle jokes.

So a neutron walked into a bar and says, "i'd like a beer, please." And the bartender gives him one and the neutron says, "thanks, how much?" and the bartender says, "For you? No charge."

So one ion runs into another ion and says, "Hey, can you help me? I think I lost an electron." And the second ion says, "Wow, are you sure?" and the first one says, "Yeah, I'm positive!"

28 Comments

[David Bernstein, October 10, 2008 at 8:48am] Trackbacks
A Small Idea for the Current Crisis:

An idea that emerged from random conversations: pick the neighborhoods in the U.S. with the highest foreclosure rates, and give buyers a substantial tax credit--say 20-30%--on the purchase price after a fixed period--say five years--in which they hold and maintain the property. You can add features to prevent damaging speculation, like requiring a substantial down payment.

The basic idea is that property in a lot of these neighborhoods is already cheap, but people are afraid to buy for fear that prices will decline another 20% to 30%, and even that the neighborhoods will become dangerous ghost towns as foreclosed residents move out and aren't replaced. Provide a cushion against further decline, buyers will swoop in, prices will stabilize, foreclosures will diminish (and short sales will increase), and pressure on the banking system will be reduced. If politically necessary, you can also add features to prevent windfall profits, like taxing any future profits on these properties as ordinary income.

I understand that the crisis now goes well beyond U.S. domestic mortgages, but surely stabilizing that market couldn't hurt.

28 Comments

[Orin Kerr, October 10, 2008 at 12:09am] Trackbacks
Is ABC News Confused Over Scope of NSA Program?: ABC News has — or at least tries to have -- a big gotcha on the Bush Adminsitration about NSA surveillance:
  Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.
  Intercept operators allege the NSA is listening to citizens' phone calls.
  The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination. . . .
  "These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.
  In testimony before Congress, then-NSA director Gen. Michael Hayden, now director of the CIA, said private conversations of Americans are not intercepted. . . .
  Asked for comment about the ABC News report and accounts of intimate and private phone calls of military officers being passed around, a US intelligence official said "all employees of the US government" should expect that their telephone conversations could be monitored as part of an effort to safeguard security and "information assurance."
  This is a noteworthy story. This particular monitoring hasn't been public before: As a commenter points out, it is probably the ECHELON program at work, or at least something close to it. And besides, how often do NSA analysts talk about their work?!? But it seems pretty clearly incorrect to say that this story suggests that Bush and the intelligence heads were lying about the Terrorist Surveillance Program the New York Times first reported on in 2005. The problem is that this appears to be a different monitoring program than the TSP.

  Recall that the TSP was controversial largely because the government appeared to be violating FISA: It violated FISA because the NSA was collecting information inside the U.S. through U.S. switches. But this program appears to be based on satellite monitoring of satellite calls from the Middle East, which FISA did not attempt to regulate until the latest FISA Amendments Act of 2008. So while it's still an important story, the link to the TSP strikes me as really weak.
33 Comments

Thursday, October 9, 2008

[David Bernstein, October 9, 2008 at 11:02pm] Trackbacks
The McCain Attacks on Obama:

The McCain campaign is unleashing attacks on Obama's judgment and trustworthiness, in particular by highlighting his ties to Bill Ayers. At first, voters aren't go to pay attention to this, because it seems like a silly distraction when we have an economic crisis on hand. On second thought... well, there's a comment on Ann Althouse's blog that reflects my thinking:

So the theory is "nobody cares about scurrilous charges against Obama" because they're too busy looking at their 401k's fall through the floor.

I don't know if I buy it. The voters want someone who they can trust to manage getting us out of this mess. That's a character question. Neither McCain nor Obama are financial market experts. It comes down to whose judgment do you trust more.

However, I'm not sure the answer isn't still "Obama," despite his fibbing about Ayers. Because I'm not so sure the erratic, impulsive and vindictive McCain wouldn't be worse.

Unfortunately, neither candidate strikes me as the obvious "steady hand in an economic crisis" candidate. Is it too late too start a write-in campaign for Warren Buffett?

123 Comments

[Jonathan Adler, October 9, 2008 at 10:14pm] Trackbacks
AK Supreme Court Stays Out Of "Scandal":

Several Alaska state representatives wen to the Alaska Supreme Court seeking to shut down the state legislature's investigation of the so-called Palin "troopergate" scandal. This means the legislature's investigative report will be released tomorrow. The Anchorage Daily News reports:

The state Supreme Court rejected an appeal by Texas-based Liberty Legal Institute and Anchorage attorney Kevin Clarkson, who filed the lawsuit on behalf of the Alaska Republican state legislators opposed to their colleagues' investigation.

The state legislators whose names appeared on the appeal attempting to stop the investigation are Wes Keller, Mike Kelly, Fred Dyson, Tom Wagoner, Carl Gatto and Bob Lynn.

Their lawyers argued that allowing the investigation to proceed would threaten the right under the Alaska Constitution to a "fair and just" investigation by the Legislature. They allege bias among the legislators who are leading the investigation, and that the Legislative Council lacks the authority to order the probe.

The court issued a short order, and an opinion is forthcoming

While I never thought the "troopergate" story made for much of a scandal, the aggressiveness with which some are trying to shut down an investigation would suggest otherwise. I suppose we'll see soon enough.

99 Comments

[Jonathan Adler, October 9, 2008 at 10:02pm] Trackbacks
The Candidates and the Court:

On Tuesday, the WSJ ran two articles by Jess Bravin examining the approach to judicial nominations likely to be taken by each of the major presidential candidates. The articles provide a good side-by-side comparison of the candidates.

In "Barack Obama: The Present Is Prologue," Bravin writes:

On legal matters, including Supreme Court appointments, an Obama administration would likely be shaped by its leader's strong convictions on constitutional law. As in other areas, Sen. Obama's jurisprudence points to a change from the "strict constructionist" philosophy advocated by Republican presidential contenders from Richard Nixon to John McCain.

Precedents, text and other legal tools can provide a just outcome in "95% of the cases," Sen. Obama said before voting against confirming chief-justice nominee John Roberts. But for the "truly difficult" cases that remain, the "last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." . . .

"I appreciate the temptation on the part of Justice Scalia...to assume" that if the 18th century text is followed "without question or deviation...all good will flow," Sen. Obama writes in his book, "The Audacity of Hope." "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document."

As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School.

In the other story, "John McCain: Looking to the Framers," Bravin writes:
In judicial nominations, Sen. McCain is likely to rely on advice from the Republican legal establishment, which has helped pull the court firmly to the right in recent years. Backers say that as president, Sen. McCain would use his "gut instinct" to make the final cut among qualified candidates.

"He's going to count on his advisers, people like Ted Olson [the litigator who won the Bush v. Gore case], to tell him that the person has a good law background," says Sen. Kyl. Sen. McCain likely "will be looking more at the kind of character the individual has."

Possible candidates could include federal appeals judges Janice Rogers Brown, Brett Kavanaugh, Priscilla Owen and William Pryor, former judge J. Michael Luttig and Paul Clement, a former Bush administration solicitor general. . . .

Sen. McCain's emphatic pledge to name committed, closely vetted conservatives to the bench aimed to assuage worries among conservative intellectuals that, faced with an opposition Senate, Sen. McCain might compromise with Democrats on judicial nominations.

The stories also contain some other interesting tidbits. for instance, Bravin reports that Senator McCain has pair relatively little attention to judicial nominations in the past, even deferring to Arizona's other Senator on district court judgeships. Bravin also cites Douglas Kmiec, a former Romney advisor, as among those supporting/advising Obama on legal issues.
24 Comments

[David Post, October 9, 2008 at 5:20pm] Trackbacks
Bailout Analogy:

I've been thinking about co-conspirator Eric Posner's analogy (see chained post) in regard to the recent Treasury Dep't moves in the banking bailout:

It is now clear that Treasury will take a more aggressive approach. Not only will it buy commercial paper; it will buy equity in banks. . . . People call this process “restoring confidence†in the financial system; but it really just replaces one financial system (a more-or-less private one) with another (a government-run system). It’s as if a hurricane hit a city and the national guard took over food distribution. We don’t say that the government is restoring confidence in the private food distribution system; we say that it is operating the food distribution system, and will do so until the private system recovers on its own. (my emphases)

Is the food distribution analogy the right one here? There is a difference between buying equity in banks [or food distribution companies] and sending out the national guard to do our banking/food distribution work. Among other things, we (i.e., the Treasury) participates in the upside (if there is an upside) in the one and not in the other. And more to Eric's point: it is not quite as absurd to call the former a "confidence restoring" move. Warren Buffett's purchase of Goldman Sachs equity was widely seen (correctly, imho) as a move that could "restore confidence" in Goldman, because buying equity is very stupid if the firm is going into bankruptcy but very smart if the firm is going to recover. The Treasury plan is not exactly the same, I realize, but calling it a move that might "restore confidence" in the banks doesn't strike me as so terribly over-the-top.

Related Posts (on one page):

Bailout Analogy: Plan B (C?).
15 Comments

[David Post, October 9, 2008 at 3:12pm] Trackbacks
Statutory Oddity:

I've been teaching copyright law for more than a decade, but I just noticed something most peculiar in the Copyright Act that I'm not sure has a parallel anywhere else in the US Code. Here's the background. Section 101 of the Copyright Act defines a "Work Made for Hire" as either

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a writ-ten instrument signed by them that the work shall be considered a work made for hire.

If something is a "work made for hire," the consequence is that the employer (under clause (1)), or the person commissioning the work (under (2)) is deemed to be the "author" of the work (and therefore owns all of the copyright in it).

It's a very important provision — hundreds of millions, maybe billions, of dollars worth of copyrighted work fall within its provisions every year — and every year I spend a couple of classes on it. What I never really focused on before is the paragraph that immediately follows the definitions quoted above:

"In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations."
?? I don't think I've ever seen a provision like that before. Here (thanks to a number of colleagues on the Ipprofs list who illuminated this for me) is the backstory. For many years, people in the recording industry had advanced the position that sound recordings were covered on the list of works made for hire as "audiovisual works." At the same time, they were trying to get the statute amended to add "sound recordings" to the list in paragraph 2. In 1999, on the eve of recess, they were successful in sneaking in a provision to that effect to an omnibus communications reform bill. When Congress reconvened, a number of representatives changed their mind (some claiming that they hadn't noticed the 11th hour amendment), and the provision was deleted.

Here's where it gets interesting. The recording industy folks were worried that now they'd be even worse off than they had been before the amendment was passed — because a court might reasonably interpret passage of the amendment as evidence that Congress did not believe that sound recordings were already covered in paragraph (2). So they added the provision quoted above to reassure the RIAA that deletion of the amendment would just, hopefully, restore the status quo ante.

What strikes me as odd in all this is the following: Can Congress tell courts not to "consider" certain things that incontrovertibly did happen in the past when they construe a statute? That is, the provision Congress inserted says to courts, in effect: "When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment." I'm no constitutional law specialist, but that looks, to me, like it is encroaching on a core judicial function — the function of statutory interpretation; not just telling courts what Congress thinks a statute means (which Congress does all the time, via statutory definitions and the like), but telling courts what tools of statutory construction they may or may not use when interpreting the statute. Update: Notwithstanding some off-topic comments, there's a pretty interesting discussion going on in the comments here. Among other things, there are a couple of law review articles on the subject which I didn't know about, and which appear, on the face of it, to argue opposite sides of the question: Linda Jellum's article in UCLA Law Review seems to lean towards my position (the provision is of questionable constitutionality), while Nick Rosenkranz's paper in the Harvard Law Review seems to point in a different direction on the question. DavidP
41 Comments

[Eric Posner, October 9, 2008 at 9:20am] Trackbacks
Plan B (C?).

The original TARP idea was to hold reverse auctions for mortgage-backed securities. The government would hold them to maturity or resell them. Whatever one thinks of this plan, it puts relatively little burden on government decisionmakers. However, one criticism of the plan was that government agents would not be able to set the price correctly, whether through the auction mechanism or in some other way, and therefore end up underpaying (in which case the plan would not work) or overpaying (enriching greedy investment bankers).

It is now clear that Treasury will take a more aggressive approach. Not only will it buy commercial paper; it will buy equity in banks. It may well be that liquidating the market in MBS’s would not have been adequate, and more aggressive measures are needed. But if one has doubts about the ability or incentives of government agents to price correctly MBS’s, then one ought to have even more doubts about the new agenda. To buy commercial paper, you need to distinguish among the various companies that offer it, and pay no more than its value, which requires a good knowledge of the balance sheet and operations of the seller, not to mention the market in which it operates and the health of the economy and financial system. Sure, it’s short-term and therefore safer than other forms of debt, but it still needs to be priced correctly in light of its risk. To buy equity, you need to make similar judgments. And to exercise one’s rights responsibly, one needs to monitor the company, its market, and the economy, and exercise any rights one has – in the case of equity, to control the operations of the company. Good luck!

As the financial system collapses, the banks are increasingly becoming ventriloquist’s dummies for the government. They remain as shells but the government calls the shots. In the case of the commercial paper market, the fiction is not even being maintained: firms borrow directly from the government. People call this process “restoring confidence†in the financial system; but it really just replaces one financial system (a more-or-less private one) with another (a government-run system). It’s as if a hurricane hit a city and the national guard took over food distribution. We don’t say that the government is restoring confidence in the private food distribution system; we say that it is operating the food distribution system, and will do so until the private system recovers on its own.

Related Posts (on one page):

Bailout Analogy: Plan B (C?).
47 Comments

Wednesday, October 8, 2008

[David Post, October 8, 2008 at 5:52pm] Trackbacks
Be a Patriot: Don't Pay Sarah Palin's Salary!!

Here's Gov. Palin during the debate with Sen. Biden:

"Now you [Biden] said recently that higher taxes or asking for higher taxes or paying higher taxes is patriotic. In the middle class of America which is where Todd and I have been all of our lives, that's not patriotic. Patriotic is saying, government, you know, you're not always the solution. In fact, too often you're the problem so, government, lessen the tax burden and on our families and get out of the way and let the private sector and our families grow and thrive and prosper."
Well, you heard it here first, folks: I have uncovered incontrovertible evidence that Sarah Palin has received hundreds of thousands of dollars of tax revenue and converted them to her own personal use!! Where the hell else does she think her salary comes from?
It may be foolish, or unwise, or even unreasonable to suggest that people pay higher taxes; sometimes it surely is all of those. But it is really irresponsible, outrageous, and insulting to say that it's unpatriotic. I dislike paying my taxes as much as anyone, and I dislike the general propensity of the Democrats to spend more and to tax more. But paying taxes (along with voting) is one of the most patriotic things I do. I don't pay my taxes because I'd go to jail if I didn't; I pay my taxes because that is the price we pay to live in the society in which we live, and it's insulting to suggest that somehow I'm being snookered into acting unpatriotically. If the government has things on which it has to spend money, it is sheer Knucklehead Conservatism to say "we need to spend the money — for a war against our enemies, for example, or to pay the medical costs of our retirees — but we won't ask people to pay any taxes to fund it." And it's thoroughly irresponsible of a candidate for high office to suggest that paying taxes is unpatriotic. If McCain and Palin are elected — increasingly unlikely, but just suppose — let's just stop paying our taxes, OK? It would be the patriotic thing to do.

Whoa, folks ... this firestorm of comments is a little more than I bargained for. A couple of responses to the many, many points raised in the comments:
1. If you think I'm such a fool, YOU CAN STOP READING MY POSTS. That's the good thing about the VC - there's lots of other stuff for you to read and argue about.
2. The most interesting comments were those (from the more reasonable ones) suggesting that I mistook "unpatriotic" for "not patriotic." That's a pretty interesting point. To begin with, I would've thought they were, in fact, synonyms. Undressed is the same as not dressed. Unbearable is the same as not bearable. Unkind is the same as not kind. Unintelligent. Unfair. Unreasonable. At least, in most contexts, and most usages.
3. Having said that, I can see the counter-argument that many of you are making here; Palin's not saying "Biden is being unpatriotic", she's saying "Biden is wrong to suggest that paying taxes is patriotic." It's what we lawyers call a "fine" distinction - not irrelevant, I grant you, but, in my opinion, not central to what she was trying to communicate. Look at what she said:

"Patriotic is saying, government, you know, you're not always the solution. In fact, too often you're the problem so, government, lessen the tax burden and on our families and get out of the way and let the private sector and our families grow and thrive and prosper."

So let me get this straight. It's patriotic to say "lessen the tax burden," but it's not patriotic (oops!! I almost said "unpatriotic") to say "raise taxes to pay for the things you're buying." That's what she's saying, folks. Her words, not mine. Now, many of you seem to think that makes perfect sense, and shows that Gov. Palin understands many things that have eluded morons like me. You're perfectly entitled to your opinion. But I still don't get it. It still looks outrageous, over-simplified, and irresponsible, to me. And if that makes you want to call me names, see Point Number 1, above.

4. I know that Gov. Palin knows that her salary is funded by taxes. That was meant as irony. If you didn't catch that, I should've made it clearer.

Update 2. A few of you have tried the interesting strategy of actually reading what I wrote and thinking about it. Here's courtwatcher:

I'm convinced David P is correct here. Palin said: "In the middle class of America which is where Todd and I have been all of our lives, that's not patriotic. Patriotic is saying, government, you know, you're not always the solution."

Try replacing "patriotic" with any of the words David suggests. In these cases, the context and usage make clear that in those cases, "unX" = "not X":

In the middle class of America which is where Todd and I have been all of our lives, that's not reasonable. Reasonable is saying, government, you know, you're not always the solution. In the middle class of America which is where Todd and I have been all of our lives, that's not intelligent. Intelligent is saying, government, you know, you're not always the solution. etc.

In all these cases, it's clear from the context and usage that "not X" means the same as the compound word "unX" would mean. (Go ahead and explain why this is wrong - all 300+ of you. :-) ) I can see situations in which "unX" would not mean "not X," and commenters have correctly identified some of them. But this isn't one of them, and certainly it isn't obviously one of them. This part of David's post is completely reasonable even if some here disagree with it. To say it's obviously "wrong" or a failure of logic is just incorrect. It's stunning to see how unwilling people are to even imagine that someone might have a different view.

I couldn't (and, I guess, I didn't) say it better myself.
Now, once again — you might disagree with my assessment that Palin's statement was outrageous, or that it is irresponsible for a candidate for public office to make it. That's entirely fair game, and I'm even (though many of you will not believe it) open to persuasion on that. But to all of you who called me some pretty nasty names for making such a foolish logical mistake, maybe you're the ones who need to take a deep breath and look at the text on the page and think about it. Apologies can be sent to me at David.Post@temple.edu :)
419 Comments

[Todd Zywicki, October 8, 2008 at 2:29pm] Trackbacks
WWND?

That's "What Would Nozick Do?" about the bailout and the American residential real estate market? Richard Epstein tell us.

And this has to be the first time in recent memory that a popular op-ed has been organized around Nozickian themes.

Update:

I'll also note that the odds on me doing two posts, one of which is about "Nosek" and the other about the virtually identical sounding "Nozick" must be pretty slim.

66 Comments

[Eugene Volokh, October 8, 2008 at 1:29pm] Trackbacks
"Let's learn judo with Vladimir [Putin]" DVD:

The Daily Mail (UK) reports. Thanks to Arvin Tseng for the pointer.

17 Comments

[Orin Kerr, October 8, 2008 at 12:54pm] Trackbacks
Is the Palin E-Mail Hack Indictment Legally Flawed?: Here's the indictment. And here's the potential problem with the indictment. In order to charge the case as a felony rather than a misdemeanor, the government needed to claim that the intrusion was committed to further criminal or tortious activity. The statute, 18 U.S.C. 1030, states that the intrusion is a felony if the intrusion "was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."

  Oddly, though, the indictment doesn't exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was "in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section lO30(a)(2)" But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime. Otherwise the felony enhancement is meaningless, as every misdemeanor becomes a felony.

  I'm not sure if the indictment is facially defective based on that. It might be, because it effectively doesn't say what crime the government is charging (in that the the government must show the unauthorized access and also the crime that the access is in furtherance of -- if you're the defendant, how to you defend yourself against an unnamed crime?). But if the government is trying to make this a felony on the theory that the intrusion was designed to further the crime of the intrusion, that strikes me as an extremely weak argument.
107 Comments

[Orin Kerr, October 8, 2008 at 12:33pm] Trackbacks
Is Arizona v. Gant the Sleeper Crim Pro Case of the Term?: About a month ago, I started a long post on Arizona v. Gant, a Fourth Amendment case argued yesterday involving the search incident to arrest power. I never finished the post, in part because I wasn't sure if the Court would see Gant as easy error correction under Thornton or an opportunity for Justice Scalia to pick up his pro-defendant Thornton concurrence and run with it. If it turned out to be the former, then the case wasn't worth the time. Based on the fascinating oral argument transcript from yesterday, however, it looks like the latter may be the case.

  There's a lot going on in Gant, and I can't do it justice here: I have to catch a train out of town shortly for the Jewish holiday. But I did want to flag the transcript and suggest it's worth a read: You don't often see the Supreme Court consider overruling a precedent to expand constitutional protection by replacing a bright-line rule with a standard. (Please note: If you are a fan of the popular meme of "our Supreme Court is filled with conservative activists who want to take away our rights," you may want to avoid this case to minimize uncomfortable cognitive dissonance.) Anyway, I hope to blog more about it in the future.
27 Comments

[Todd Zywicki, October 8, 2008 at 11:29am] Trackbacks
In re Nosek:

An important bankruptcy opinion just down from the 1st Circuit in In re Nosek. The issue in the case was the practice of the lender (Ameriquest), of crediting the debtor's payments under a chapter 13 plan to missed payments first before crediting them to currently due payments. This is Ameriquest's practice outside bankruptcy and it continued to do the same inside bankruptcy.

The debtor complained, arguing that this payment allocation system violated the bankruptcy code. The practical effect (simplified) of the allocation system was that it meant that the debtor's account never appeared to be current in Ameriquest's system. Nosek claimed that she was going to try to refinance her mortgage but was, or would have been unable to do so, because of Ameriquest's payment allocation system. She never actually submitted an application (in light of the fact that this was 2004 at the heyday of subprime refinance lending, she should probably be happy that she was unable to refinance!).

The bankruptcy court initially awarded Nosek $250,000 for pain and suffering from the experience under section 1322(b) of the bankruptcy code. On appeal the district court reversed, saying that for damages to be awarded the court would have to proceed under section 105. On remand, the banrkuptcy court again entered judgment for $250,000 for pain and suffering but then added $500,000 punitive damages against Ameriquest. The court relied on the holding that Ameriquest violated section 1322(b) as the predicate basis for the award of damages under section 105. The district court affirmed.

The 1st Circuit has now entered judgment reversing liability and thus the award of damages. This is a hugely important case, because as bankruptcies rise--especially for homeowners--the underlying practice in Nosek is likely to recur. Affirmance would have required lenders to change their payment posting policies in bankruptcy, either requiring them to adopt new rules that would apply equally both inside and outside bankruptcy or to have two different systems depending on whether a debtor is in bankruptcy. Obviously, affirmance of such huge damages would also have spawned a race to the courthouse to challenge Ameriquest's practices across the country and probably many other lenders that post payments differently from how the bankruptcy court wanted payments posted here. When I spoke at the Tidewater Bankruptcy Conference last January, we dedicated a good portion of our panel to a discussion of the bankruptcy court's holding in the case.

The court wrote:

Analyzing § 1322(b) with these background principles in mind, the bankruptcy court found that Ameriquest had violated the Bankruptcy Code by failing to adequately distinguish between Nosek's pre-petition arrearages and her ordinary post-petition mortgage payments. The court stated:

The system [Ameriquest] was using has design flaws that inevitably lead to a showing that [Nosek is] behind in her payments. It did not distinguish between pre- and post-petition obligations which contradicts with [sic] 11 U.S.C. § 1322(b) which provides for the curing of any default over the course of the plan, a plan which is binding on [Ameriquest]. . . .

With this language, the court implied that Ameriquest's accounting threatened Nosek's opportunity to cure her pre-petition default pursuant to § 1322(b) and the Plan. Ameriquest contests the bankruptcy court's conclusion that the company defied the text of § 1322(b). It argues that the language of § 1322(b) does not impose obligations on any party, let alone a lender. We agree. The plain language of § 1322(b), relied upon by the bankruptcy court to find a violation of the Code, does not impose any specific duties on a lender. It merely lists elements that a Chapter 13 debtor may include in her plan. Accordingly, there is no basis for concluding that Ameriquest violated the text of § 1322(b).

The court held that for there to be a violation of section 1322(b), the lender has to violate an express provision of the debtor's chapter 13 plan. That didn't happen here because neither the code nor Nosek's plan speaks to the issue of how payments should be posted to the debtor's account. So there was no violation of section 1322:

The Plan language says nothing about how Ameriquest must account for pre- and post-petition payments during the course of the repayment period if payments are short, late, or not made at all. Simply put, the terms of the Plan itself do not provide the specificity required to invoke the enforcement authority of § 105(a).

As the plaintiff alleging a violation of the Bankruptcy Code or a related court order, Nosek had the burden of establishing that her cure rights pursuant to § 1322(b) and the Plan were violated or at risk of being violated by Ameriquest's accounting practices. Yet the bankruptcy court concluded that Nosek had not shown any economic harm resulting from Ameriquest's accounting, whether in the form of late fees, finance charges, or an improper notice of default. In addition, the court also rejected Nosek's claim that the Payment History she received prevented her from refinancing her loan. Addressing this issue in the context of Nosek's various state law claims, the bankruptcy court found that any damages based on Nosek's inability to refinance her loan on more favorable terms "would be mere speculation." The court found that Nosek "did not provide a basis to award actual damages. No documents were offered as evidence of the proposed refinancing. No testimony was proffered refinancing was even offered; there was no evidence of the terms of a refinancing which [Nosek] could expect to receive."

Notwithstanding Nosek's failure to prove actual damages sufficient to sustain a Chapter 93A claim, the bankruptcy court concluded that Ameriquest's accounting practices violated Nosek's cure rights pursuant to § 1322(b) and her Chapter 13 Plan, providing a predicate for a damage award under § 105(a). In essence, the court found that Ameriquest's slowness in crediting Nosek's payments to the proper account and its failure to distinguish between pre- and post-petition payments constituted violations of the Bankruptcy Code and her Plan. This conclusion was erroneous. Although a debtor need not show proof of economic damages to establish that her cure rights have been violated, she must at least establish that her right to cure the pre-petition default provided by the Chapter 13 plan has been impaired or threatened by the creditor's actions. Nosek's subjective fear of such impairment, based on a document prepared by Ameriquest for internal purposes only, and in the absence of any evidence that the company regarded her as in default on the basis of its accounting practices, does not suffice. Indeed, Ameriquest stated that its internal records showed that Nosek was considered current in her payment history. The Payment History document, provided only to Nosek on her request and admittedly difficult to decipher, did not show to the contrary. Nosek offered no other documentation indicating that her cure rights were at risk.

The court concludes:

Notwithstanding these legal conclusions, we are not unsympathetic to Nosek's predicament as a debtor seeking to satisfy the terms of her Chapter 13 Plan and stave off foreclosure of her home. Her circumstances are all too common today.15 Given their prevalence, it is troubling that Ameriquest had not established a more efficient and accurate way of handling the accounting issues revealed by this case at the time of trial. We fully understand the bankruptcy court's concerns about the practices that it described.

Nevertheless, the bankruptcy court's legitimate concerns did not justify the remedy that it invoked. Nosek did not demonstrate here that Ameriquest's accounting practices caused her any economic harm or threatened her right to cure her pre-petition default. Morever, even if such a threat had been demonstrated by those practices, there was no language in Nosek's Plan, as it was confirmed, or in § 1322(b), that addressed how Ameriquest was to apply the payments it received from Nosek or from the trustee. Under such circumstances, the Plan would have to be amended to prescribe the accounting practices necessary to protect Nosek's right to cure before Ameriquest could be sanctioned for a violation of an order of the bankruptcy court. In the absence of such specificity, there was no violation of § 1322(b) or the Plan and therefore no basis upon which to award Nosek damages under § 105(a). Because the bankruptcy court's judgment in the adversary proceeding is vacated, the order confirming Nosek's Third Amended Plan, which was based on the erroneous damages award, also must be vacated.

Update:

I had an error in the facts when I originally typed this. I meant to say that Nosek claimed that she was unable to refinance as a result of Ameriquest's actions, rather than that she was unable. So she was not rejected for a refi; in fact, she never actually applied. I've corrected the text.

28 Comments

[Jonathan Adler, October 8, 2008 at 9:50am] Trackbacks
The Missing Edited SNL Skit:

The SNL skit on the bailout legislation was temporarily removed from the web so as to edit out potentially objectionable content as well as to protect Rep. Barney Frank, or so it seems from this report.

In an interview with Gold, the show's executive producer, Lorne Michaels, said the Sandlers were distraught but had not demanded the changes. He noted the "People who should be shot" line was deleted as was a reference to their "corrupt activities."

But a comparison of the two versions shows that actually a little more than that was cut. What also was excised was any mention of the involvement of Massachusetts' Rep. Frank in the Sandler subprime mess.

Frank is the influential chairman of the House Financial Services Committee and an ardent political protector of Fannie Mae and Freddie Mac, which participated in the subprime problem.

In the original skit Sandler addresses Frank, saying, "And thank you Congressman Frank as well as many Republicans for helping block Congressional oversight of our corrupt activities."

To which Frank replies enthusiastically, "Not at all!"

All that's gone in the new version, which Show Tracker has posted here.

I suppose the most charitable interpretation is that the dig against Rep. Frank had to go if SNL was to edit out any reference to the Sandler's "corrupt activities" — but why was this excised in the first place? As I noted in my prior post, the "people who should be shot" line was the only aspect of the skit potentially warranting any revision at all.

UPDATE: The New York Times TV Decoder blog reports:

Explaining the move, NBC said in a statement: “Upon review, we caught certain elements in the sketch that didn’t meet our standards.â€

The couple had expressed their anger to Lorne Michaels, the executive producer of “SNL,†who told the Los Angeles Times that he did not realize the characters were real people until Monday. “When I spoke to them, I can assure you this: ‘They are very, very real,’†he said. “I think they were angry, I think distraught, I think they were not expecting to turn on the television and see that.â€

He said the couple did not specifically request that changes be made to the video. Nonetheless, the graphic and a reference to “corrupt activities†were removed.

SECOND UPDATE: More from John Fund here:

NBC yanked the video off its Web site sometime early Monday. It appears NBC acted because it feared a lawsuit from the Sandlers, who are prominent funders of such left-wing groups as Air America and MoveOn.org. While no legal threa