Friday, April 30, 2010

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.

Thursday, April 29, 2010

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.

Tuesday, April 27, 2010

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.

Monday, April 26, 2010

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.

Friday, April 23, 2010

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.

Thursday, April 22, 2010

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.

Thursday, April 15, 2010

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"?

Wednesday, April 14, 2010

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.

Thursday, April 8, 2010


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!

Wednesday, April 7, 2010

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.

Tuesday, April 6, 2010

Ooo, Scary

It's official: the U.S. government is proposing to fine Toyota $16.4 million for waiting four months before notifying our safety officials about defects in its vehicles that may be responsible for episodes of unintended acceleration. Apparently that's the maximum fine that can be imposed.

It sounds like a big amount, but I expect Toyota isn't especially scared. It already spent $900 million on its recall of affected vehicles, not to mention experiencing lost sales of $155 million per week. Compared to what this fiasco has already cost the company, $16 million isn't even like adding a tip to your restaurant bill.

I guess we might as well go ahead and impose such fine as we can, but really, what is needed at Toyota, and at AIG, and was needed at Lehman Brothers, and other companies, is a culture that appropriately considers risks in giving rewards. I expect someone at Toyota decided to save a few million by not worrying about this problem, even though it posed a risk of costing the company billions. It's the same blind spot that caused far too many executives at American banks and other companies to pump up their annual numbers -- and their own bonuses -- by taking on risks that ended up bankrupting the whole firm. Somehow we need to encourage companies, in calculating how they reward executives, to consider, not only how much the company made that year, but how much risk it took on as well.

Monday, April 5, 2010

Specter's Specter

Our nation's capital has been buzzing for some time now about the possibility of Justice Stevens's retirement, and Adam Liptak's piece in the NYT this weekend heightened speculation.

Now Senator Arlen Specter has jumped into the discussion with a suggestion that Justice Stevens wait until next year. A Supreme Court appointment in the current political atmosphere could, Specter fears, produce a filibuster that would tie up the Senate. Next year, he thinks, there would be more chance of reaching consensus on a nominee.

I'm sure Senator Specter knows a lot more about the Senate than I do, and I wouldn't trust my predictions over his about what would happen in that body. But boy, if I were President, I sure would want to send my Supreme Court nominee over to the Senate now, when there are 59 Democrats sitting there, rather than take my chances with the new Senate next year. Who knows how many Democratic Senators there will be then? I'm not as pessimistic about the Democrats' chances in the mid-term elections as some people, but the President's party does typically lose some seats in the mid-terms. Let's say that the choice was between having the Supreme Court appointment in the current, somewhat poisonous political atmosphere, but with 59 Democratic Senators, and waiting until next year, when things might have settled down a bit, but with, let's imagine, only 54 or 55 Democrats in the Senate. If you were President Obama, which would you prefer?

I'll take the former, thanks. I'd rather have more votes, and I also don't think a filibuster of a Supreme Court appointment would really be all that easy. The whole nation pays attention when there's a Supreme Court appointment, and a filibuster would look excessively obstructionist. It would really paint the Republicans as the "party of no" going into the mid-terms.

So while, of course, it's not really a choice that the President can make -- it's up to the Justice to decide whether and when to retire -- if I were President, I would prefer the retirement now. I would say that Senator Specter's fear of total Senate gridlock on this appointment is an overly exaggerated fear -- a bogeyman, if you will. No, a chimera. An apparation? A phantom? Oh, if only there were a good word for it.