Big Changes

Big changes are coming to Law Prof on the Loose.

Starting tomorrow, I will be on leave from GW while I serve as the Director of Research and Policy of the Administrative Conference of the United States ("ACUS"). I anticipate returning to my regular academic position in 2012.

I haven't spoken to my new boss about this yet, but I probably won't be blogging about politics, Supreme Court cases, and other public affairs while working for the government. I'm not planning on taking down the pre-existing blog posts (just as I am not recalling any of my prior publications, either), but further posts will have to be different, if they appear at all.

Expect no posting for at least a month or so, and then, if I blog at all, it will probably be on topics far removed from public affairs. Poetry, perhaps? Recipes, anyone?

Faithful Readers, I have appreciated your interest and support. It's been a little over three years and not quite 600 posts, including a couple of guest stints on Concurring Opinions and PrawfsBlawg. I've enjoyed this avenue of public expression. Your comments have been interesting and stimulating. Together, we have considered the rights and wrongs of judicial and political decisions, the foibles of the rich and powerful, and occasional notes from culture, sport, and life.

I'll miss you all during this hiatus. Hope to see you again soon.

Will Law School Change?

A hot topic at law schools these days is whether the legal education business model is sustainable. Over at Balkinization, Brian Tamanaha suggests that law schools may be scamming students by taking advantage of students' unrealistic job expectations to get them to pay sky-high prices. An article by Daniel Theis (a student) in the latest Journal of Legal Education sounds the same theme. One of my own colleagues gave us a talk on the subject recently.

A common theme to the argument is that lawyers face permanent, structural changes in the market for their services. Clients, it is said, are no longer willing to pay top dollar for work by junior associates that really amounts to providing the training for these starting lawyers. Therefore, law firms can no longer afford to hire legions of juniors. High-salaried starting jobs at big law firms will become scarcer, and students will no longer be will to pay big bucks for an increasingly small chance at these jobs. In response, the argument goes, law schools will have to figure out how to deliver legal education at much lower cost (through greater use of adjuncts, Internet learning, etc.). There will also be a premium on skills and clinical education that will permit students to graduate ready for practice, and a de-emphasis on scholarship and other professorial activities that don't directly contribute to students' education.

It's always important to keep an eye on large-scale trends and to consider ways to improve. Law schools should take a hard look at trends in the legal world and consider whether they need to innovate. But I am somewhat skeptical about some of the changes that critics claim are inevitable.

First of all, it's not yet clear whether there really is a permanent, structural change coming in the provision of legal services or whether things will go back to their old patterns if the economy cyclically improves. But in addition, I've been hearing for at least a decade that the absurd cost structure of law schools can't possibly be sustained in the face of technological change. In the future, I've been hearing for a long time, a small number of superstars in each field will teach all the classes over the Internet, and the rest of us professors will be lower-paid, glorified TAs, who will grade the exams while our students watch the superstar teachers online.

I'm not saying this could never happen, but it hasn't happened yet. What all of these suggestions overlook, I would say, is something important about what law students are buying with their tuition dollars. Students are buying an education, but they are also buying the reputational value of their degree. That reputational value is very important.

If we professors abandoned every activity we engage in other than teaching, we could probably double the number of classes we teach. Then the school could fire half the faculty and deliver legal education at much lower cost. We could lower the cost still more if we taught everything over the Internet -- perhaps using faculty from other schools, as in the superstar model.

But what would happen to our reputation? A school like GW could probably coast on its prior reputation for five or ten years, but eventually the rest of the academy would notice that we weren't producing anything in the scholarship department, and our reputation would take a big dive, and with it the value of our students' degrees. That is why students have an interest in the scholarly production of their faculty. And as to Internet law schools, well, they do exist, but I haven't heard that their graduates are in much demand.

So I think that those forecasting big changes need to take more account of what schools need to do to invest in the reputational value of their students' degrees. I could imagine more change taking place at schools that aren't in the top 100 -- where the students are relying more on their moxie than on the reputational value of their degree to get jobs anyway. I'm not saying change isn't in our future, but I see an important counterweight that needs to be considered. Schools can't totally change the way they do business without considering what it will do to their reputations.

One change I would support, though, is fuller disclosure. Law schools should publish real information about their students' job statistics. Not just the bilge that is reported to U.S. News, but real information. If students are going to law school with the idea of getting a high-paying corporate job, they should be able to determine what their chances really are. Then they could make a more intelligent decision before they lay out their big tuition bucks.

Majority Rule Redux

An extension of unemployment benefits failed yesterday, because it is supported by a mere 57% of Senators.

I don't pretend to know whether extending unemployment benefits is really a good idea or not. Paul Krugman keeps saying that we need more of just this kind of government spending now, and he's got a Nobel prize in economics, so I'm inclined to agree with him. But it is at least a priori possible that we have reached the point where it's time to worry more about the deficit than about the recovery, and deciding which side is right is not my area of expertise.

But what I do know is this: our political system is broken, and the filibuster rule in the Senate is the chief culprit.

It's absurd that something supported by 57% of our elected representatives can't get legislatively passed. These days, if an individual candidate gets 57% of the vote in an election, that's a big, solid win. So why can't policies supported by 57% of our elected representatives get enacted?

Health care reform, ultimately enacted with the aid of the Senate's "reconciliation" rule (which doesn't permit filibusters), showed how efficient Congress can be when it isn't bound by an absurd supermajority requirement. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

Imagine where we could be if the Senate needed only a majority to pass any legislation. Not just these unemployment benefits, but financial reform, climate change legislation, energy policy reform, and probably even immigration reform could all be accomplished already.

Maybe Congress would enact good legislation, maybe not. Things could be a lot better because Harry Reid wouldn't have to agree to outrageous special deals to buy those last few votes. Things could be worse because the majority would go out of control. But things would get done. And if the people didn't like what got done, they could vote for someone else. That's got to be better than what we have now.

Maybe filibusters made sense at some earlier stage in our nation's history. They might have been OK in past days when there was a gentlemen's agreement to use filibusters only on occasions of great moment. But now that they are used every day, on every kind of legislation or nomination, they are a fatal impediment to basic governance. The filibuster rule must go.

The Hobgoblin of Little Minds

I know it's difficult to maintain methodological consistency over many years of cases, but one might expect to see some basic level of consistency over, say, a month. But even that can be tough.

In today's opinions, Justice Thomas joins a concurrence by Justice Scalia, which chides the Court for relying on the Advisory Committee Notes to a Federal Rule of Criminal Procedure. The Notes are not authoritative, Justice Scalia complains -- only the text of the rule matters. But it wasn't even a month ago that Justice Thomas joined, without comment, a Court opinion that relied on Advisory Committee Notes to a Federal Rule of Civil Procedure, even though Justice Scalia concurred separately, raising the same point. (As I said at the time, Justice Scalia is extending his anti-legislative history campaign somewhat unthinkingly here, but that's another story.)

Are the Criminal Rules so different from the Civil Rules? I don't think so. It looks more like Justices don't sweat every detail of the opinions they join. In today's case, Justice Thomas may have joined Justice Scalia's opinion primarily for its bigger difference with the Court's decision (Justice Scalia thought part of the statute at issue was unconstitutional), and he may not have cared so much about this interpretive methodological detail. The big issue wasn't present earlier this month when Justice Thomas went along with consulting Advisory Committee Notes -- again, perhaps without really intending to commit himself on that particular point.

I know a foolish consistency is the hobgoblin of little minds, but these methodological issues do matter, and a little consistency on them would be welcome.

Trends in Legal Writing

Today's Supreme Court decisions display a recent trend: the statement of facts in the Court's decisions has become so long and boring that the Court has taken to previewing the facts in the introduction. The result is that the introduction contains all the facts you really need to know to understand the decision, so you can skip over the actual statement of facts, which is bloated with unnecessary detail. Check out these examples.

It makes one sigh for the opinions of old, when facts were stated crisply and succinctly and the opinion got right to the good parts. Take a look at Judge Cardozo's classic opinion in Palsgraf v. Long Island Railroad Co.: the statement of facts is one short paragraph. It's kind of like the statement-before-the-statement in today's Supreme Court opinions. If only the Court could limit itself to that minimalist statement instead of using it merely as the preview before the detailed statement.

There's a reason why statements should be short. Not only does it make the opinion easier to read, but it makes the case easier to apply. If a court states 20 facts in its statement of facts, it is implying, or at least leaving open the possibility, that all 20 facts were relevant to its decision. What if the next case has 18 similar facts but two different ones? Do we have to go back to the Supreme Court to find out if those two were critical to the decision? Possibly. If the Court states only 5 facts in its statement, it's much easier to tell whether the decision applies to a subsequent case.

Therefore, the statement should be rigidly limited to relevant facts. Don't embellish.

The Slipperiest Slope

We all know that grade inflation is widespread at law schools, but I had never heard of a school's doing what Loyola of Los Angeles has now done: it retroactively changed grades, by adding half a step (actually .333) to all grades awarded in the last few years. So every B- became a B, every B+ an A-, and so on.

Apart from being a little tough on anyone who got an A+ (I presume that grade isn't being changed), such grade inflation is bad because it amounts to deception. The goal of grade inflation (apparently expressly stated) "is to make its students look more attractive in a competitive job market." That is, the goal is to play on people's perceptions of what the traditional grades of A, B, and C mean, while giving grades that have different meanings.

Employers might fight back by ignoring the grades and relying on class rank instead. That would work -- you could call the grades A, B, and C or you could call them Apple, Fire Engine, and Giraffe, and it wouldn't matter as long as you had class rank -- but schools can thwart that tactic by abolishing class rank. That's what GW did when we raised our grading curve a few years ago.

I voted against the change to our grading curve because I thought it involved deception. And I didn't think that the fact that everyone else is involved in the same deception could justify it, any more than a student would be excused for cheating on the plea that everyone else was cheating too.

Over time, my view has evolved somewhat. As the proponents of the change argued at the time, grades have meaning only as a result of social understanding. There was supposedly a time when "C" meant "average," but certainly today a student who got all Cs would not be regarded as an average student. (I wonder if C was ever really the average grade actually given, or whether we have always lived in Lake Woebegone, where all the students are above average.) There is something to be said for the view that we have to give grades that match the current understanding. If all the other schools are now operating on a B+ average and we give grades on a B average, we are disadvantaging our students, and not necessarily achieving the goal of honesty.

Still, the whole thing leaves a bad taste in one's mouth. As today's NY Times piece observes, grade inflation is a never-ending arms race. Everyone uses the excuse that the social meaning of grades has changed to justify changing their own grades. And there's no point always being the last to catch up to the general trend -- in fact, every school has an incentive to be the leading edge of the trend. That, of course, just makes grade inflation go faster and faster.

It's a classic collective action problem. The problem could be addressed if there were some authority that had the power to impose national standards, but there isn't, and whatever the generally accepted view of the meaning of grades is, everyone has an incentive to cheat a little and have somewhat higher grades than that. There's no good solution, and I'll be torn when it next becomes our turn to raise our grades again.

Snoozer

In case you've been dying to know whether the Carmack Amendment trumps the Carriage of Goods by Sea Act with regard to the domestic inland segment of carriage conducted under a through bill of lading that contains a "Himalaya clause," you're in luck! The Supreme Court provided the answer today. I won't spoil it for you.

Still no Bilski and no decision about the constitutionality of the Public Company Accounting Oversight Board. They're putting off the good stuff for the very end.

Sorry About That

Republican Representative Joe Barton apologized to BP for the "shakedown" the company has received from the White House. Then he apologized for apologizing and took back the word "shakedown."

What was he thinking? Look, the minimum penalty for causing an environmental catastrophe has to be forcing the company to internalize the cost that it has imposed on the rest of us. We don't know exactly how much it's going to cost to clean everything up and compensate those who have lost income, but something in the billions seems highly likely. I don't know if it'll be more or less than $20 billion, which is the amount of the compensation fund BP has set up, but that seems like it's in the ballpark.

The compensation fund seems right on target. People are calling for criminal penalties, but there's nothing like good old money to motivate profit-seeking corporations. Let's say BP saved a couple of million dollars by taking safety shortcuts when building the well. Socking them up for $20 billion, which is 10,000 times that amount, is a powerful incentive. It would cause a rational company to tell its employess, "don't try to save a couple of million by taking safety shortcuts if there's even a 1 in 10,000 chance that it might go wrong and cost us $20 billion."

If we could force profit-seeking companies to perfectly internalize all the external costs that their operations impose, they'd have exactly the right incentives. Of course, the external costs can never be perfectly measured and in most cases there's a lot of litigation costs and uncertainty. But a $20 billion compensation fund seems like a good start.

And by the way . . .

In reading yesterday's Supreme Court decisions, I noticed that there is still no Bilski. The longer they keep us waiting for that case, the more I'm convinced it's going to make a major change in patentability. What could they have in store for us? A big cutback in patentable subject matter, I'm thinking.

Finally

The Supreme Court is finally getting around to deciding some of the more important cases of the Term (Monday's decisions were too boring to mention), and today it came out with the New Process Steel case and determined the fate of hundreds of NLRB decisions.

The question was, can the National Labor Relations Board operate with just two members? The normal membership of the Board is five members, and a quorom is normally three. So you might think that the Board couldn't operate with just two.

But, the Board's organic statute allows the Board to delegate its powers to a three-member group, and then provides that a quorom of such a group shall be two. Presumably, the idea here was for the Board to be able to authorize itself to meet in panels of three, the way an appellate court with many judges does routinely. So if the Board authorized a panel of three to consider a case, and then one of the members was disqualified, the remaining two could decide the case.

But the Board faced an unusual situation: toward the end of 2007, the Board was down to four members -- and two of their terms were expiring shortly. It would soon be down to two members, below the quorom of three.

So the Board delegated its powers to three of the members, including one whose term was expiring, and then claimed, when it was down to two members, that those two constituted a quorom of the group of three! The remaining two members thereby decided almost 600 cases, while the President and the Senate squabbled about whom to add to the Board as new members.

By a 5-4 vote, the Supreme Court has now squashed this maneuver. While recognizing that the Board's action rested on a "textually permissible" reading of the organic statute, the Court effectively said that it just couldn't believe that Congress intended the Board to be able to operate with just two members on a long-term basis. The statutory provision for a two-member quorom of a three-member group was for unusual circumstances, not for hundreds of cases over a period of years, the Court believed.

I have to give this one to the dissenters. I expect the Court is right that Congress didn't intend the Board to operate routinely with just two members, but it probably didn't intend the Board to cease functioning either. Congress probably didn't anticipate that the full Board membership would fall to just two members.

The question is how the statute Congress wrote applies to this unforeseen circumstance. The statute permits delegation of the Board's power to any three members and permits two of those three to constitute a quorom. That's what the Board did. As the dissenters observed, the Board's action was "a thoughtful and considerate exercise of its reasonable discretion when it was confronted with two imperfect alternatives."

Everyone's Got a Theory

Everyone's got a theory as to why mystery man Alvin Greene won the Democratic primary for U.S. Senate in South Carolina. It is quite mysterious how a man who never gave a speech, had no campaign web site, and has $114 in his campaign account could have won the primary -- and pretty handily, too, by 100,000 votes to 70,000 (see page 9 of the results).

But of all the theories, the one that I find most implausible is that somehow the Republicans engineered the result by planting him in the Democratic primary and having large numbers of Republicans cross over and vote for him to sabotage the Democrats' chances in the general election. I suppose it's theoretically possible, because South Carolina's primaries are "open" -- voters can choose which party's primary to vote in -- but it's not the kind of thing you can engineer secretly. To get 100,000 voters to vote for someone nobody's ever heard of requires some notice and planning. You can't just send a secret e-mail to all of the state's Republicans. Someone would spill it. Back in the 2008 presidential primaries, Rush Limbaugh advised Republicans to cross over and vote for Hilary Clinton to make life more difficult for the Democrats (which turned out to be bad advice -- it ended up helping Obama), but he didn't even try to keep it secret.

It's possible that Greene is somebody's plant -- it is a little hard to understand how a man who's being represented by a public defender in a criminal case came up with over $10,000 for the filing fee -- but that still doesn't explain what moved over 100,000 South Carolinians to vote for him.

So I would check into the voting machines (that's another theory), but I wouldn't blame cross-over Republicans.

Oh, and did anyone check whether Vic Rawl, the apparently more serious Democratic candidate, ran a lame campaign?

The Repealer

Senator Brownback, in his campaign for Governor of Kansas, has proposed creating an office of the "Repealer," whose charter is a bit murky at this point but who would apparently have the task of disposing of silly, obsolete, or excessively burdensome state regulations and laws. The suggestion is part of a trend of states to clean up their law and regulation books to get rid of unnecessary and obsolete material. Michigan, apparently, has repealed the laws against prizefighting and dueling.

Wait a minute -- dueling? Look, the idea of going through the law books and getting rid of outdated and obsolete material is a good one. As Senator Brownback points out, it seems as though regulations just increase endlessly and "nothing is ever subtracted from the system." People are rightly frustrated that there seem to be never-ending incursions on everyday freedom, and it's a good idea to check that government regulations which may have made sense when adopted are still necessary, appropriate, and wise, and to get rid of them if they aren't.

But dueling? It's not as though dueling has become OK over time. There used to be a serious problem of people dueling over alleged points of honor -- and let's not forget that dueling involves a private agreement between two people that it's OK for one of them to kill the other. That was properly suppressed, and if dueling were made legal I could imagine some young hotheads taking it up anew. Kids do crazy things, and if you could get around the laws against murder so long as there was an agreement between the people involved I would expect some people would do it.

Fortunately, the stated reason for repealing the dueling law in Michigan is that other, more modern laws clearly make dueling illegal anyway, so there's no need to maintain a specific law against it. But frankly, I would have kept that one. The news headline is "dueling decriminalized," and that's not a headline you want.

No Reservations

Taking a day off from more serious legal topics, let's consider the trend reported by the New York Times today that an increasing number of restaurants are refusing to take reservations and are seating people on a first come, first served basis.

The Times and some of the restaurateurs involved suggest that the no-reservation system is more "democratic" than taking reservations. That's obviously rubbish. Last time I checked, anyone who was capable of paying for dinner at a restaurant was also capable of making a reservation -- all it takes is a telephone or an Internet connection. Reservations are hardly the preserve of some inaccessible elite.

The message sent by a restaurant that won't take reservations is "we don't give a damn how long you have to wait for a table -- it's no skin off our nose if you have an unpleasant waiting experience." The only thing worse than a restaurant that won't take reservations is a popular restaurant that won't take reservations. A popular pizza restaurant in DC -- I won't mention the name, but it's near the Cathedral -- doesn't take reservations, and while it does have good pizza, if you want to eat that pizza you have to spend at least an hour, usually more, waiting for a table, and that's if you go during the week. I don't go their often.

As the Times points out, taking reservations entails costs, and not taking them also means that customers are likely to spend longer in the restaurant's bar and order more drinks, which are a high markup item. So restaurants are just making money by not taking reservations, at the expense of their customers, who have a less pleasant experience.

If a restaurant usually doesn't have much of a wait for a table, not taking reservations is acceptable. Restaurants that refuse to take reservations and that expect their customers to wait for more than an hour before even sitting down might as well turn themselves into airlines -- the real experts in customer non-appreciation.

Not Nuanced Enough

Another interesting tidbit in yesterday's Supreme Court opinion was Justice Scalia's concurrence in Krupski v. Costa Crociere S.P.A. The case involved the interpretation of Federal Rule of Civil Procedure 15. Passing over the details of what the case was actually about, the interesting part is that Justice Scalia objected to the Court's reliance on the Advisory Committee Notes that accompanied the promulgation of the rule.

Now, one might say that this is only to be expected -- after all, Justice Scalia has waged a long-standing war against reliance on legislative history. But really, the Advisory Committee Notes seem quite different from the kind of legislative history to which Justice Scalia typically objects. Typically, legislative history consists of a report drafted by one committee of one house of Congress, or words spoken in debate by a single legislator on the floor of one house of Congress. Justice Scalia rightly points out that such history might not reflect the views of the full Congress, which is the body that can give the law authoritative force (although, as I have explained at length, the legislative history may be understood as "incorporated by reference" into the resulting laws).

But the Advisory Committee Notes are different. They're more like the "official comments" that accompany sections of the U.C.C. They are prepared by the single, non-bicameral body that prepares the text of the rule. The Supreme Court is aware of them as it puts its official imprimatur on the rule and gives the rule force. The process is quite different from the legislative process. The difference in the processes by which laws become laws and by which the Federal Rules become rules should give rise to different attitudes regarding the value of the history in interpreting the resulting texts. I think Justice Scalia is being inappropriately mechanical in carrying over his legislative history fight into this different arena.

Court Uses Math!

Today's opinion in Barber v. Thomas poses a math problem as well as an interpretive problem. Federal prisoners who behave well in prison are eligible to receive "good time" credits toward service of their sentence. But when exactly should they be released?

The relevant statute says that a prisoner serving a term of more than one year may receive a credit "of up to 54 days at the end of each year of the prisoner’s term of imprisonment," and that "credit for the last year or portion of a year of the term of imprisonment shall be prorated." So if a prisoner is receiving prorated credit while serving the last year of his sentence, how do you calculate the release date?

The appendix to the Supreme Court's opinion actually contains algebra! Having concluded that the provision for prorated credit means that the prisoner should continue to earn credit at the rate of 54 days per 365 days served, the Court works out the necessary equations. I would do it this way: assuming a sentence of y years, let x be the number of days the prisoner actually needs to serve. Then we have:

x + (54/365) x = y.

So, (419/365) x = y.

And therefore, x = (365/419) y, which is about .871y. So for a 10-year sentence, a prisoner who got maximum good-time credits would have to serve .871 * (10 *365) = 3179 days, or 8 years 260 days. The Court did it a little differently but got to the same result.

Cool to see some actual math, even easy math, in a Supreme Court opinion.

But is this the lawful method of calculating credit? That was the interpretive question. The prisoners wanted slighlty more credit, and the dissent argued that a prisoner's credit for each year should shorten the next "year" for which the prisoner could earn credit. Thus, if a prisoner earned 54 days of credit in his first year, that would be credited against his next 365-day year, so he could earn another 54 days of credit in the next 311 days.

I think the Court's opinion makes more sense. The statute provides for up to 54 days of credit "at the end of each year of the prisoner’s term of imprisonment." That sounds like the prisoner must serve 365 days, not 311, to earn 54 days of credit.

Your Share of the Debt

With the national debt at $13 trillion and counting, it was interesting to hear a story on NPR this morning about one woman's efforts to get people to contribute voluntarily to help pay it off. Kay Fishburn, a nurse from Wisconsin, founded "Citizens for a Debt-Free America," which encouraged people to send in money voluntarily. (If you're inspired to do so, the government bureau that will accept your gift can be found here.)

I can't help but admire someone who actually makes an effort to do something about our nation's tremendous debt, and I don't want to sound mean-spirited or curmudgeonly, but I don't think voluntary contributions are the answer to our debt problem, and I'm not sending in anything myself. Good work, Ms. Fishburn, I don't mean to criticize you for trying, but I see some huge problems with your efforts:

First, it's inconceivable to me that voluntary contributions could ever make even a minor dent in the public debt. According to the story, Fishburn's organization managed to raise about $3 million in contributions in its best year. That might seem like a good haul, but when the public debt is in the trillions, $3 million isn't even a rounding error.

Second, the fair and just way to deal with the public debt is for the burden of it to fall on everybody. When I pay income taxes, I know everyone else has to pay them too. The burden of the public debt shouldn't fall only on those who are public-spirited enough to make an extra contribution. What makes taxes tolerable is the knowledge that each individual's contribution is joined with those of everyone else. (Of course there are a lot of infuriating loopholes and special deals in the tax system, which detract from this sense of shared sacrifice, but at least that's the idea and it achieves the goal better than voluntary contributions.)

Finally, and most insidiously, there is a danger in presenting the government with new, free revenue -- it might just spend it. Again, I don't want to sound too curmudgeonly, but really, even if everyone started voluntarily chipping in a bunch extra to pay off the national debt, there's no guarantee that it would work, because Congress might then feel less pressure to control spending. Looking at the performance of Congress in this regard over the past decades, it does seem that, with rare exceptions, substantial deficit spending is a constant in our government, regardless of which party controls Congress or how well the economy is doing. The government managed to run a surplus for a little while under President Clinton, but that was exceptional.

So while I admire and thank anyone who's willing to chip in extra to help pay of the U.S. national debt, I would think that the problem can only be solved by an appropriate mix of tax policy, spending control, and good economic performance at the national level.

You Have the Right

Sorry for the lack of recent content, faithful readers. I was on vacation last week.

The Supreme Court ruled yesterday that a suspect given the Miranda warnings, particularly the warning, "you have the right to remain silent," must invoke that right in order for it to be effective. Answering questions after being given the warnings will be taken as a waiver of the right to remain silent, notwithstanding the statement in Miranda that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." It seems that an arrested suspect must say "I invoke my right to remain silent" -- and "invoke" has to be in italics, I'm guessing -- or the police can just keep questioning the suspect until he breaks down and says something incriminating.

Others have covered the susbstance of the decision, but here's a word about the procedure that may have escaped attention: the case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.

Of course, the judges who complain most vociferously when courts allegedly "reach out" to decide questions unnecessarily, or at the behest of parties who supposedly lack standing, or who in some other way aren't presenting the question in a perfectly justiciable posture, are usually the very same ones who produced yesterday's opinion. In the landmark case of Teague v. Lane, for example, Justices Scalia and Kennedy (the other conservatives weren't on the Court yet) joined an opinion explaining that because new rules don't normally apply retroactively in habeas cases, courts asked to articulate a new rule can't even consider the question unless they first decide that the new rule would, exceptionally, apply retroactively, because otherwise they would be announcing an advisory opinion.

So, as usual, judges just can't make up their minds whether they want to be strict or loose in these procedural matters. If I were cynical, I'd say they like to be loose when that allows them to reach a result they favor, and strict when it allows them to avoid reaching a result they wouldn't like. Good thing I'm not cynical!

Protests Too Much

This is rich -- John Yoo thinks we should be concerned that Supreme Court nominee Elena Kagan might not take a sufficiently broad view of executive power. That's kind of like saying that Tiger Woods is concerned that she's single.

John Yoo was Deputy Assistant Attorney General in the Bush Administration and wrote the infamous "torture memo." He takes the broadest view of executive power around, and his reasoning isn't even remotely responsible. In the torture memo, for example, he said that, in light of the President's power as Commander in Chief, a statutory prohibition against torture had to be construed so as not to apply to interrogations undertaken pursuant to the Commander in Chief authority, and he didn't even mention Congress's war powers. It's one thing to reach a conclusion after considering both sides, but he just ignores the other side.

And he's still doing it. Even in his Times piece, he describes the view that Congress can insulate agency officials from the President's removal power as "simply wrong." Simply wrong! His evidence -- Justice Scalia's dissenting opinion in Morrison v. Olson. He doesn't mention that the vote in that case was 7-1 -- Justice Scalia was alone in dissent. He goes on to say that "From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities." He doesn't even mention that this hasn't been the law at least since the Supreme Court's decision in Humphrey's Executor in 1935, more than 70 years ago.

So boy, I'm really concerned that John Yoo might not approve of Elena Kagan. Actually, I'm not. His disapproval is more like a recommendation.

Accidents Happen

Donald Rumsfeld famously suggested that the appropriate response to looting and social upheaval following the Iraq War was "stuff happens." It's nobody's fault, no one could have been expected to plan for and prevent it, these things just happen.

That same attitude is on display from the Republican nominee for Senate in Kentucky, Rand Paul. You knew that Rand Paul was going to be quite a character -- he's the son of Ron Paul, the firmest believer in limited government in the whole Congress and the darling of tax protestors and End the Fed enthusiasts everywhere -- but perhaps you didn't anticipate his response to the BP oil spill and the Massey coal mine explosion: "Accidents happen."

Really. Rand Paul thinks President Obama's criticism of BP has been "un-American." It's just part of the "blame-game society in the sense that it’s always got to be someone’s fault instead of the fact that sometimes accidents happen."

And as to the Massey coal mine explosion that killed 29 miners, Rand Paul said, "We had a mining accident that was very tragic. Then we come in, and it’s always someone’s fault. Maybe sometimes accidents happen."

Wow. Look, I would admit that sometimes accidents do happen -- some things aren't anybody's fault -- but the flip side has to be Rand Paul admitting that sometimes people or corporations blatantly ignore safety rules with disastrous results.

One of government's most basic functions is to protect health and safety. People complain about complicated and intricate safety rules, and I'm sure things do get excessive sometimes, but you have to remember that before the modern era of safety regulation, industrial health and safety was a nightmare. Brakemen had to ride on top of trains and duck when the train went through a tunnel, with predictably horrific accident rates. In coal mines, the death rate from industrial accidents could be up to six percent per year. If you work in an office with 100 people, it's pretty jolting if one of them dies on the job. Now imagine if six of them died on the job -- every year.

So accidents don't just "happen." OK, sometimes they do, but often they are the predictable result of not putting a sufficient priority on safety. The nation struggled for decades building an infrastructure of industrial health and safety. I'm sure some elements of the resulting rules are excessive, but to go back to the attitude of "accidents happen," as though there's nothing that could or should be done about that, is stunning.

Swear or Affirm

Members of the House of Commons were sworn in this week as the new Parliament started. As is true in the U.S., members can choose to swear by God that they will bear true allegiance (to Her Majesty there, to the Constitution here), or they can solemnly affirm that they will do the same. But what's interesting is that, as can be seen in the video, in Britain many members actually choose the "affirm" option. The new Conservative Prime Minister, David Cameron, swore, but his Deputy Prime Minister, Liberal Democrat Nick Clegg, affirmed, as did the Speaker and the Leader of the Labour party. Most of the Labour party affirmed; most of the Conservatives swore.

What would happen to a politician in the U.S. today who declined to take an oath and swear by God to support the Constitution? Our Constitution gives the affirm option and provides that "no religious test" shall ever be required for public office, but I think the voters might visit their displeasure on a politician who didn't swear. Apparently Franklin Pierce chose to affirm back in 1853, and Quakers often affirm because their religion takes literally the biblical prohibition on swearing by God. But a politician today who affirmed and explained doing so on the ground that he didn't believe in God would be in some trouble here, I think.

LWOP

Having covered the truly significant decision in yesterday's post, let's get to the flashier but not really as important decision in Graham v. Florida. The Supreme Court held that it is unconstitutional "cruel and unusual" punishment to sentence a juvenile offender to life without parole ("LWOP") for a crime not involving a homicide.

I don't really have strong feelings about the decision -- although I think I might have joined the second part of the Chief Justice's opinion, which concluded that LWOP was an unconstitutionally disproportionate sentence for the crime involved in the particular case before the Court, without deciding whether such a sentence could never be appropriate for any juvenile convicted of a nonhomicide offense, no matter how horrible and depraved that offense might be.

What interests me about the decision, though, is this: Justice Thomas, joined by Justice Scalia, expressed the view that there is no proportionality requirement whatever in the Eighth Amendment's Cruel and Unusual Punishment Clause. That clause, they believe, prohibits torturous methods of punishment, but has no application to the question of whether a punishment that might be permissible for some crime is too severe for some other crime. The Court majority, on the other hand, stated that "[t]he concept of proportionality is central to the Eighth Amendment." How can five Justices think something is "central" to the Amendment and two Justices think it not involved at all?

As is often the case, part of the answer comes down to textualism versus other interpretive methods. Justices Thomas and Scalia, in my view, put too much weight on textualism in this question. The Eighth Amendment's single sentence provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is true that the text does not expressly impose a proportionality requirement on prison sentences. But it does prohibit excessive fines. Can anyone possibly explain why the Constitution would provide that society cannot impose a fine on a criminal that is disproportionate to the criminal's offense, but could impose a disproportionate prison sentence?

I'm sorry, but it just doesn't make sense. One can understand how the Framers might have neglected to specify that prison sentences shall not be excessive, because, as Justice Thomas himself notes, prison sentences were not a common punishment in the eighteenth century -- criminals were punished by fines, whipping, or shaming, or, if that was not sufficient, then by death. But it is hard to understand how anyone could want to prohibit excessive fines but not excessive prison sentences, and the appropriate solution is to subsume the excessiveness requirement in the prohibition on cruel and unusual punishment.

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

Should Kagan Talk?

Lots of buzz lately about whether Elena Kagan, President Obama's choice to fill Justice Stevens's Supreme Court seat, should or will actually answer questions during her Senate hearings, or whether she will follow the example of recent nominees and pretty much stonewall everything. Some commentators have enjoyed pointing out that Kagan herself has stated that "the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." So it might seem that she should be particularly subject to substantive questioning.

Supreme Court confirmation hearings have become a game in which nominees display their skill at avoiding substantive questions. It's a little peculiar. The expressed reason is usually that the nominee doesn't want to "prejudge the issue." It is thought unseemly that the nominee should commit herself to voting a particular way on an issue that is likely to come before her as a judge. But if that is the case, what do we do with actual judges and Justices who have, many times over, committed themselves to voting particular ways on particular issues that come before them? Every Justice who votes on a case is committing himself to voting that way on the same issue the next time around. There's no need to wonder how Justice Scalia or Justice Breyer will vote on the question of whether Congress can abrogate state sovereign immunity; they've both expressed their views on this issue very clearly. Should they be kicked off the Supreme Court? Obviously that's not how it works.

A better reason for a nominee's reluctance to answer questions, I think, should be that they don't know the answer. I remember during Justice Souter's confirmation hearings that a Senator, trying to find some acceptable way to get at the nominee's views on big issues, asked whether the Korean war was constitutional (or perhaps he asked whether it was a "war" in the constitutional sense, I don't remember exactly). Souter declined to answer, citing the usual reasons. But I think a better reason would have been this: look, we don't hire people for the job of Supreme Court Justice because they have the answer to every difficult question written on their shirt cuffs. If that question really arose in real litigation, it would get bandied about in the lower courts for months or even years, parties would make every conceiveable argument on both sides, it would come up to the Supreme Court in a particular context, it would be extensively briefed and argued there, and only then would a Justice be called upon to opine on it.

Justices aren't and shouldn't be expected to know everything instantly. They get to look smart because they make decisions by choosing between outstanding arguments made by smart counsel. I suppose it wouldn't play well on TV if Souter, asked whether the Korean war was constitutional, had said, "oh, I have no idea," but that would probably be a more honest reason for declining to answer. There's a reason why we have an elaborate process for getting answers from the Supreme Court. The questions are hard and the answers should be produced with deliberation.

PR Again

The other day I pointed to a couple of disadvantages of proportional representation, so it's only fair to give the other side a hearing, and who better to explain the advantages of proportional representation than funnyman John Cleese? Just click here for a ten-minute video explanation that points out that (1) pretty much every other country in Europe uses PR, (2) PR tends to prevent sharp policy swings from liberal to conservative and back again, (3) PR promotes compromise instead of divisiveness, (4) PR produces a Parliament that better reflects the overall voting distribution in the country, and (5) PR tends to elect more women and minority MPs than first-past-the-post.

A well-done video that makes you think. And it was produced back in 1987! So this issue has been around for a long time.

Fixed-Term Parliaments?

Now that David Cameron is Prime Minister, with Nick Clegg as Deputy Prime Minister, the pair can get to work on their agenda (and I promise we'll stop with this British politics stuff soon). Apparently one item on the program is a change to fixed-term Parliaments, so that the next election date is already planned for May, 2015.

Have the Brits thought about what this will mean? Britain is currently blessed with short election campaigns -- they last about six weeks. But, it seems to me, that's all based on not really knowing when the election is going to be. Current British law permits the governing party to call a general election anytime it wants, with a maximum interval of five years between elections. Of course that is rather unfair -- it gives the party in power an important edge, by allowing it to call an election when it thinks things are going well. But it does have at least one important advantage -- the campaign is short.

Because there's no fixed date for the election, no one knows when to start campaigning. Of course, you could start promoting yourself early, I suppose, but campaigning costs money, and you don't want to start blowing your campaign funds when you don't know the election date.

Once there's a fixed election date, it seems to me, everyone can start campaigning at whatever time they think strategically best, and the American experience suggests that that time gets earlier every election cycle. If Britain firmly establishes now that its next general election is going to be in May, 2015, I would expect campaiging to start a whole lot earlier than the traditional six weeks or so before the election -- they might have to endure six months or a year, and that's just for this go-around.

Well, perhaps they'll deal with it by limiting campaigning legally. Britain has no First Amendment to get in the way of campaign restrictions, so political television advertising is already mostly banned in Britain, and perhaps they'll figure out a way to stop campaigns from getting too long. But it'll be hard to ban all political promotion and I think fixed-term Parliaments are likely to lead to much longer campaigns.

Tired Cliche

I'm nearly done with the grading process, and boy am I happy about that. Grading is the worst part of the job.

About this time of year, you often hear professors console themselves by saying, "grading is what I get paid my entire salary to do. I'd do the rest of my job for free."

This was amusing the first few times I heard it, but it's gotten rather stale by now. And I'm sorry, but it's not true. Being a law professor is in fact a great job, but it's not something I or anyone else would do for free.

Don't believe me? Here's my standing offer to any law professor who makes a good salary and who insists on this view: I'll do your grading for you. You do the rest of your job. And you'll only have to pay me three-quarters of your salary. You can keep a quarter for yourself. That way, you'll be ahead of the game, since you've stated that you'd do the rest of your job for free.

Any takers?

Poignant Letter

And speaking of British politics, I enjoyed this short but poignant letter that appeared in the Guardian newspaper:

"I should like to check a couple of things in the British Constitution. Where can I buy a copy?"

American constitutional law is hard enough, but at least the Constitution consists of a text that anyone can read. Britain's "constitution" consists of an ill-defined set of important statutes plus an even less well defined set of traditions.

Some work is in progress to provide Britain with a written Constitution -- and I am proud to tell you that this project was announced in a speech at George Washington University by Jack Straw, Britain's Justice Secretary, when he was here a couple of years ago -- but at the moment there is of course nowhere to "buy a copy" of the British Constitution.

It must make things tough when things like a hung Parliament arise. The previous Prime Minister, Gordon Brown (who apparently is still Prime Minster, at least for now), initially insisted that the rule for that situation was that he had the first opportunity to form a new government, but David Cameron (leader of the Conservatives, who got the most seats) thought that it was his prerogative. The matter was effectively decided by Nick Clegg, leader of the third-party Liberal Democrats, who agreed with Cameron.

Of course, we have plenty of doubtful points arising under our written Constitution too. But at least we know what the Constitution is, even if we don't always know what it means.

Proportional Stalemate

I doubt that I have many British readers, but the Internet goes everywhere, so here's a thought for Britons contemplating switching to a system of proportional representation.

First, background for American readers: Britain's general election on Thursday produced a "hung Parliament" -- no single party controls a majority of the seats in the House of Commons. The Conservatives have the biggest share of seats at 306, Labour is second at 258, and the third party Liberal Democrats have 57. Minor parties control 28. That means that no party can form a government by itself, and coalition talks are proceeding. 326 seats are needed for a majority, so the Conservatives could form one by allying with the Liberal Democrats, but Labour and the Liberal Democrats together wouldn't have enough -- they'd have to rope in some small-party seats.

The biggest demand of the Liberal Democrats is a change in the system of elections. Britain, like the U.S., uses a "first past the post" system, in which any given seat goes to the candidate with the most votes for that seat, even if that number is not a majority. Such a system is hard on third parties. A party like the Lib Dems, which has a fair amount of support throughout the country but not much concentrated support anywhere, doesn't get nearly its "fair" share of seats, if "fair" is defined as proportional to the overall vote. Last Thursday the Lib Dems got 23% of the nationwide vote but only 9% of the seats in Parliament.

A proportional representation system is fairer in the sense that seats in the legislature are distributed in proportion to the overall national vote, but it has the disadvantage that voters don't really get to vote for candidates -- the vote is more a vote for a party than for a candidate. Your local representative is determined in part by the overall national vote, so the sense of voting for a particular candidate because he or she is good is diminished.

Anyway, all of that is the background to what I'm sure is a very obvious point, but here goes: if Britain is upset that is has a hung Parliament, in which the parties have to go wooing each other to form a majority, don't they realize that a system of proportional representation would produce a hung Parliament forever? This year the Conservatives got 36% of the vote, Labour 29%, and the Liberal Democrats 23%. With percentages like that, with no party even close to 50%, a proportional representation system is guaranteed to produce a hung Parliament. First past the post produces more concentrated results.

That's not to say that first past the post is good and proportional representation is bad. Each system has its virtues and its vices. But it seems clear that if Britain switches to proportional representation, it had better be ready to live with coalition government indefinitely.

The Constitution and Car Bombs

As might have been predicted, the arrest in the NY car bombing case has set off a wave of arguments about whether the suspect should be afforded the usual protections of the criminal law. Some Republicans members of Congress are suggesting that we should ignore the usual constitutional rules of the criminal law, charge the suspect as an enemy combatant, and bring him before a military tribunal.

Let's not listen to anything I have to say about the issue. Let's turn to that noted radical liberal, Supreme Court Justice Antonin Scalia, who said:

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention
without charge."

Apparently lots of people are ready to ignore constitutional restraints in the war on terror. Justice Scalia thinks the Constitution is there to protect us in peacetime and wartime and that its time-tested restraints should be honored. Even as to citizens who wage war against us, the Constitution, Justice Scalia says, requires us to treat them as criminals and charge them accordingly.

Stepped-Up Security

Police are said to be stepping up security in the wake of the failed car bomb attempt in NY. I suppose that's a good thing, and it's certainly wonderful that a combination of alert citizens and swift police response thwarted the car bomb in the first place. But really, how can we protect America against car bombs? Terrorism experts say that the Times Square bobmer's use of simple, easily obtained materials made the bombing "relatively easy to execute and nearly impossible to detect."

In our wide-open society, I don't see how simple attacks like these can really be stopped. We can't set things up so that you have to go through security whenever you want to go from anywhere to anywhere else. We can't have police everywhere all the time.

When Iraq was going through three or four big car bombings a week, I wondered why we didn't have them in the U.S. Perhaps part of the answer is social -- there probably aren't many completely solo car bombers; they must be fostered by the kinds of groups that we don't have. Let's hope it stays that way.

And meantime, appreciate the preciousness of life. Enjoy and savor.

The Disk Keeps Spinning

I don't know if Macs do this, but every Windows user must be familiar with those mysterious moments when the hard disk just keeps spinning, spinning, spinning. You're just typing something routine, trying to click on a web link, or perhaps not even touching the computer at all -- just reading what's on the screen at the time -- and there goes that hard disk, spinning, spinning, and more spinning. If you succeed in clicking on a link or typing a few characters, the machine reacts with agonizing slowness, as though it's fitting in your requests in those few spare moments it has in between its own, far more important business. You want to press a big red button that would tell your computer, "stop whatever you're doing and pay attention to ME!" Eventually, some minutes later, the hard disk stops spinning and the computer gets back to normal, as though it remembers that it's supposed to at least pretend that you're boss. Needless to say, that's what I'm going through right now.

What are our computers doing during these mysterious spinning moments? Is it a computer's form of exercise? Are they carrying out secret instructions from some distant user? Or do they have their own agendas -- some grand, unknown computation that they are calculating, all in league together perhaps, linked up over the Internet, which will reach its fruition at some moment known only to them?

You might think that if you aren't even touching the computer, and if you haven't even asked it to do anything, it would sit at the ready, awaiting your next instruction. But you'd be wrong.

Nonlawyer Justice?

As is usual when a vacancy comes up on the Supreme Court, some people suggest that the President nominate someone other than a sitting judge, to give the Court some more diverse experiential background. That's not such a bad idea -- the Court could benefit from having some people who know what it's like to run for office, manage a large law firm, or run a government agency.

But what about the perennial suggestion for a nonlawyer Justice? Now that, I would say, goes too far.

The suggestion that we put a nonlawyer on the Supreme Court seems to be based on the notion that the Supreme Court just makes up constitutional law anyway, so why couldn't a lay person make it up just as well as a lawyer?

Quite apart from the fact that I'd like to think that there's more to constitutional law than that, I think people who suggest putting a nonlawyer on the Court are forgetting that the big-deal con law cases that they have in mind make up just a small percentage of the Supreme Court's docket.

Even if you think that the Supreme Court just makes up the answers to questions about abortion, affirmative action, right to die, and other big-deal constitutional issues, what is your nonlawyer Justice going to do with questions like, "can the plaintiff in a diversity case add a claim against a non-diverse third-party defendant impleaded by the original defendant?"

That kind of question actually takes up a pretty substantial percentage of the Supreme Court's time. Even if you regard big-deal con law cases as being in a separate category, I don't think nonlawyers would do such a great job with the rest of the Court's docket.

Still No Bilski

Another sitting of the Supreme Court has come and gone, and the Court still hasn't decided In re Bilski, which promises to be a big deal in patent law. I was teaching Intellectual Property this term, and I kept putting off teaching patentable subject matter in the hopes that the Court would decide the case, but no such luck.

The case will give us some insight into the longstanding problem of the degree to which patents are available for processes that lie outside the area of traditional industrial, manufacturing processes. A "process" is specifically listed as patentable under section 101 of the patent act, and everyone agrees that a process for vulcanizing rubber, for example, is patentable, but the courts have tied themselves up in knot over more abstract processes, particularly those that involve something like a mathematical algorithm. The Supreme Court started things off by denying patentability for a process for converting numbers from one number system to another and ever since then things have been rather confused.

The Federal Circuit, created to fix up patent law, took great liberties in this area and seems to have regarded itself as authorized to ignore Supreme Court precedent. The Supreme Court gave the Federal Circuit a great deal of leeway for a while -- perhaps to let the experiment work -- but lately has been reining it in almost every Term. Now this case could be another big deal in patents.

Personally, I think mathematicians get unfairly shafted in the subject matter area. Math was my undergraduate major, so perhaps I am biased, but why should achievements in mathematics be less rewarded than those in physics or chemistry? If I invented a fast algorithm for factoring large numbers, for example, it would be extremely important -- all of encryption, as I understand it, is based on the fact that it's easy to multiply two numbers together but hard to break a large number into its factors. A factoring algorithm would be a useful and important achievement, and it's not clear to me why it shouldn't be patentable.

I think I would allow more leeway in subject matter but tighten up in obviousness. A lot of the controversial subject matter patents should clearly have gone down on the obviousness criterion. Mr. Bilski, for example, is basically saying, "I've invented hedging!," which is ridiculous. See also In re Comiskey ("I've invented arbitration!"). Let's give mathematicians their due, but only if they come up with something really new.

Here Comes Grading

My exams arrived yesterday, so I will spend the next two weeks in the semiannual ritual of grading them. Blogging may be reduced.

As bad as grading is -- and it's pretty bad -- it at least has the advantage that the task is very clear. Most of a professor's life is unscripted. The first task is to figure out what the task is. Professors have to figure out what topics to choose, what papers to write, what subjects to research. And the job is never done, either. Whatever you do as a professor, you could always be doing more -- you could always write another paper, give another lecture, make another appearance, write another book. And that means choosing yet another topic.

The freedom and autonomy of a professor's life is the best part of the job. But let's face it, it can also be a little daunting. Sometimes it's a pleasure to have a clear task before you. So professors, as you moan and groan your way through that pile of exams that never seems to get any smaller, take comfort that at least you know what you have to do.

Better Politics

When health care reform was teetering on the brink of extinction (following Senator Scott Brown's victory in Massachusetts), I noted that President George W. Bush managed to get pretty much everything he wanted even though Republicans never had more than 55 Senate seats during his Presidency. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us, when the Republicans were a minority in the Senate.

How did he do it? Well, for one thing, when Bush wanted something, you sure knew what it was, and he mentioned it every day. He talked things up until there was so much political pressure on Democrats that they had to vote for it.

President Obama is now making better use of political pressure on Republicans. Just ten days ago, all 41 Senate Republicans signed a letter opposing financial reform. Then President Obama went on the attack, pointing out that Wall Street's failure of responsbility led to the financial crisis. Democrats started painting Republicans as being on the side of big bankers and against ordinary Americans.

What do you know, suddenly the reports were that a deal was close on financial reform. There is still some doubt as to whether there are enough votes to start debate today, but even Republicans are "hopeful" that a deal can be reached.

That's the way to get stuff done. Neither party can get its entire membership to stand in the way of something really popular. The Democrats just need to create enough popular pressure to break off one Republican vote, and they can defeat a filibuster.

Tax Protestor Follow-Up

I mentioned last week that Peter Hendrickson, one of this year's most noted tax protestors, was due for sentencing. He got a bit less than three years.

The government had asked for more, seeing as how Hendrickson is a major promoter of a fraudulent tax scheme, who boasts on his own website that his followers have procured more than $10 million in refunds using his method (he posts copies of the refund checks, making them easy for the IRS to find), and who, according to the government, may have induced over 10,000 people to file false refund claims. But, somewhat pathetically, even by the government's calculation, the total amount of taxes (including income, Medicare, and Social Security taxes) that Hendrickson himself tried to avoid over a seven year period (even considering his wife's income too) amounted to only a little over $100,000. That's about $14,300 a year. Working back from that figure, one can see that all of Hendrickson's efforts (his books, his website, etc., not to mention his day job) weren't pulling in that much dough. The result was that the sentencing guidelines recommended a fairly low sentence for him, and the judge chose not to depart upwards.

All that work, and not much to show for it. If you're going to pursue a career in fraud, one would think think the idea would be to make it pay. But in Hendrickson's case, the same amount of effort, if directed at something productive, could surely have earned a much better living. Ironically, Hendrickson was lucky he hadn't been more successful, or he'd probably find himself up the river for more time.

And Hendrickson's followers? Now that their guru has been convicted and sentenced, have the scales fallen from their eyes? Do they see him revealed as the fraud that he is?

Not at all. A specific court ruling against Hendrickson's theory means nothing to them. It only confirms their belief that Hendrickson "relies on and invokes NOTHING but very WELL-SETTLED LAW." The law, they continue to insist, is all on Hendrickson's side, and he lost because the "fedgoons and the shills" were conspiring against him. It's amazing how impervious to facts some people can be.

Birther Bill Back

The Birther Bill is back. After making no progress at the federal level (H.R. 1503 was referred to a committee more than a year ago and hasn't been heard from since), the Birther Bill concept has devolved to the states. Arizona's House of Representatives just passed a version that would require presidential candidates to file proof of eligibility -- i.e., age, residency, and natural born citizenship -- to get on the ballot in that state.

Some editorialists are quick to dismiss Birther Bills as "fringe lunacy." And yes, in some sense, they are. It is pretty crazy, in the face of all the evidence, to continue to believe that President Obama is ineligible to serve because he is not a natural born citizen. And there is little doubt that the motivation behind the Birther Bills is to embarrass the President and to suggest that he is ineligible (or at least to appease those who adhere to this kooky belief).

But on the other hand, as I've observed before, if we could somehow detach the Birther Bills from the absurd controversy about President Obama particularly, and think of them in the abstract -- imagine, say, that they came up 50 years ago, or 50 years from now -- we would see that they are actually good public policy. The Constitution does require that the President be a natural born citizen at least 35 years of age. The Constitution should be enforced. There is a strong argument that the courts could not enforce the presidential eligibility requirements. Therefore, some other enforcement mechanism is necessary.

The mechanism we have now -- do nothing, and just hope that the requirements are complied with -- actually works pretty well. The tremendous publicity associated with any preisdential campaign tends to ensure that no one would even try to get around these requirements, because they would almost certainly be caught. But while it's not likely that a problem would arise that couldn't be ferreted out by the current system, the problem, if it did arise, would be very significant. So why not take some extra steps to prevent it? Especially when the necessary steps would not be particularly burdensome -- candidates would just have to file proof of eligibility with appropriate state or federal authorities.

So while the current situation is not exactly a crisis calling out for a remedy, it does pose a small risk of a big problem, and requiring presidential candidates to file proof of their eligibility seems like a good way of avoiding problems. (Actually, repealing the eligibility requirements would be even better, but so long as they are in the Constitution they should be enforced.)

Could this be done at the state level? Some people have suggested that states the lack constitutional authority to enforce the presidential eligibility requirements. But the Constitution gives the states great control over selecting their presidential electors -- it just says that each state shall appoint its electors " in such Manner as the Legislature thereof may direct." States don't even have to hold presidential elections if they don't want to. So I would think they would have great control over the manner of holding the election, if they choose to have one, and it's hard for me to see how a state could be faulted for refusing to put on their election ballots someone who isn't eligible for the office sought.

Thoguhts for Tax Day

Good article by E.J. Dionne in today's Washington Post. Dionne points out that, as much as we all dislike paying taxes, we should recognize that the IRS performs a vital function that provides the finances for our military troops, health and safety functions, and all the other positive things that government provides.

That's why it's particularly reprehensible that some politicians essentially condone or excuse terrorist attacks on the IRS, such as that of Joseph Stack, who flew an airplane into a building housing IRS offices. As Dionne observes, Representative Steve King said, "I think if we had abolished the IRS back when I first advocated it, he wouldn't have had a target for his airplane. . . . It's sad that the incident happened down in Texas, but by the same token, the IRS is an agency that's unnecessary."

Similarly, Senator Scott Brown's comments on the incident noted that it was tragic, but went on to say, "I don't know if it's related, but I can just sense not only in my election, but since being here in Washington, people are frustrated. They want transparency, they want their elected officials to be accountable and open and talk about the things that are affecting their daily lives. So I'm not sure that there's a connection, I certainly hope not. But we need to do things better."

You know, after 9/11, if anyone suggested that U.S. foreign policy or other U.S. actions might have played some role in motivating the attacks, they were blasted as terrorist sympathizers. Here we have a rather similar terrorist attack -- another suicide flight of a plane into a building(fortunately, on a smaller scale). It seems rather incredible that a politician's comment would be that "people are frustrated" and that "we need to do things better." How about, "that man was a horrible criminal and such actions can never be remotely justified"?

Filed Yet?

Tax returns are due tomorrow. NPR featured a story this morning about Tea Party tax protestors -- as well as some wealthy people who are actually asking for higher taxes. Have you filed yet?

I filed my returns yesterday, and in addition to pondering questions such as Why do we have to submit copies of our W-2s with our returns? Doesn't the IRS already get a copy from our employers?, I spent some time, as I so frequently do, thinking about tax protestors.

As Faithful Readers know, when I refer to tax protestors, I don't mean the slightly offbeat Tea Partiers, who, as far as I can tell, are simply demanding that government lower or eliminate income taxes. No, I mean a much crazier group of people -- the "tax protestors" who claim that under current law there is no legal obligation to pay income tax.

Yes, such people really exist -- so many, in fact, that I maintain a website debunking their kooky theories. Their theories start with the basic "there simply is no law that requires average Americans to pay income tax," and go on to more and more esoteric arguments, such as that "wages are not income" (because, you see, they merely represent an "equal exchange" of labor for its value in money), or that "the income tax is unconstitutional because it is not apportioned" or even that "income tax is slavery that violates the 13th Amendment." Needless to say, these theories are all complete nonsense, but it's stunning how many people fall for them.

Particularly incredible is how many people will support tax protestor gurus to the bitter end. The tax protestor du jour is a fellow named Peter Hendrickson, author of "Cracking the Code," who has his own website touting his absurd income tax theories, including a forum where his readers exchange thoughts. Now Hendrickson -- get this -- was recently found guilty of income tax crimes by a jury and is due to be sentenced on Monday. But if you browse the forum, you'll see that that hasn't stopped his readers from buying into his theories! Even now, some of them are proudly announcing that they've filed their first "CtC-educated" tax returns. The fact that CtC-educated returns don't seem to be working out too well for the guru himself is apparently not a deterrent.

Also good for a laugh is Hendrickson's post-trial brief, in which he explains why he can't be guilty of the crimes charged. Among other things, Hendrickson claims that he is not a "person" subject to the tax laws. The reason is that section 7343 of the tax code provides that:

"The term 'person' as used in this chapter includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."

Hendrickson deftly observes that the government failed to prove that he is an officer or employee of a corporation under any such duty!

Needless to say, Hendrickson doesn't understand the normal meaning of the English word "includes" -- and that's before we even get to section 7701(c) of the code, which (for the benefit of anyone who might be as language-impaired as Hendrickson) specifically provides that "The terms 'includes' and 'including' when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined."

Sheesh. There's just no end to tax protestor nonsense. It looks like Hendrickson will be joining the growing ranks of tax protestor gurus who end up as guests of the state.

Pay your income taxes. It's not fun, but it's a lot easier than paying the interest and penalties, or doing the prison time, that can result if you don't.

OMG

OK, it's too early to get excited, and this probably won't last, but Tom Watson is in the lead at the Masters. He's in the clubhouse with a 67. That's only 7 more than his age!

It was amazing enough that he came within a whisker of winning last year's British Open -- and that's a tournament where skill in battling the elements is more important than length off the tee. The Masters requires length.

Once again, it's time to get inspired. If a 60-year-old man can be in the clubhouse leading the Masters, surely there's time for me to learn how to play golf.

Update: OMG2! Now 50-year-old Fred Couples is in the lead, with 60-year-old Tom Watson tied for second!

Big Blow to Net Neutrality

A big court decision yesterday from the U.S. Court of Appeals in DC -- the court held that the FCC lacks authority to require an Internet service provider to allow consumers to access any lawful content of their choice.

The problem is that the Communications Act doesn't expressly give the FCC the power to regulate Internet service. Even the FCC admits that. Therefore, to justify its rule, the Commission has to rely on its general power to "make such rules and regulations, and issue such orders, not inconsistent with [the Communications Act], as may be necessary in the execution of its functions."

That's obviously a pretty broad and general power. The Commission would like to be able to use it to justify anything, but the courts, sensing some need to rein it in a bit, have determined that it applies only to regulations that are "reasonably ancillary" to the Commission's effective performance of its statutorily mandated responsibilities. And, the court held, that standard wasn't met here. An order requiring net neutrality may further some of the underlying policies of the Communications Act (for example, the Act says that it exists to help make available a "rapid" and "efficient" nationwide wire communication service), but that's different, the court said, from furthering actual statutory powers given to the Commission by the Act.

This is a big deal. It would appear, as of today, that ISPs are free to charge different prices based on the kind of content users want to access and to discriminate against certain kinds of content that they think take up too much bandwith -- peer-to-peer file sharing applications, for example. If we want mandatory net neutrality, it looks like we'll have to get it from Congress.