LAW PROF on the LOOSE

Big Changes

2010-06-30T08:38:00.004-04:00

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?

2010-06-27T09:50:00.004-04:00

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

2010-06-25T10:18:00.002-04:00

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

2010-06-24T11:58:00.003-04:00

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

2010-06-24T11:31:00.002-04:00

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

2010-06-22T09:03:00.006-04:00

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

2010-06-21T10:43:00.003-04:00

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

2010-06-18T10:32:00.001-04:00

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 . . .

2010-06-18T10:16:00.004-04:00

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

2010-06-17T14:00:00.003-04:00

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

2010-06-15T11:10:00.004-04:00

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

2010-06-14T10:07:00.003-04:00

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

2010-06-09T10:13:00.003-04:00

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

2010-06-08T09:53:00.004-04:00

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!

2010-06-07T11:47:00.003-04:00

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

2010-06-04T11:58:00.003-04:00

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

2010-06-02T09:10:00.002-04:00

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

2010-05-26T21:03:00.005-04:00

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

2010-05-22T07:44:00.006-04:00

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

2010-05-21T09:39:00.002-04:00

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

2010-05-19T09:42:00.006-04:00

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

2010-05-18T07:00:00.003-04:00

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?

2010-05-17T08:14:00.004-04:00

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

2010-05-14T11:29:00.004-04:00

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?

2010-05-12T10:04:00.006-04:00

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

2010-05-11T07:09:00.003-04:00

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

2010-05-09T10:04:00.005-04:00

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

2010-05-08T07:42:00.002-04:00

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

2010-05-05T07:25:00.004-04:00

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

2010-05-03T08:54:00.003-04:00

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

2010-05-02T10:09:00.004-04:00

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?

2010-04-30T10:14:00.003-04:00

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

2010-04-29T06:50:00.003-04:00

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

2010-04-27T08:05:00.002-04:00

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

2010-04-26T09:12:00.003-04:00

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

2010-04-23T07:22:00.003-04:00

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

2010-04-22T12:37:00.004-04:00

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

2010-04-15T13:22:00.003-04:00

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?

2010-04-14T13:32:00.003-04:00

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

2010-04-08T14:46:00.004-04:00

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

2010-04-07T09:42:00.005-04:00

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.

Ooo, Scary

2010-04-06T07:04:00.002-04:00

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.

Specter's Specter

2010-04-05T10:25:00.005-04:00

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.

The Real Government Takeover

2010-03-31T09:19:00.003-04:00

Less noticed amidst the health care hubbub, and the imaginary "government takeover" of health care, is the real government takeover of the student loan industry. President Obama has signed legislation providing that, instead of guaranteeing repayment of student loans from private banks, the government will lend money to students directly.

It's about time. The prior system was a miniature version of last year's bank bailout -- it had the same feature of privatizing profit while socializing losses. Why should banks get the profits from student loans while the government bears all the risk of nonpayment? It was high time to cut out the middleman.

Predictably, Republicans are speaking against the new system as a government takeover of business that ought to be private. But really, if businesses want private profits, they should have to bear the business risks too. Government-guaranteed student loans were pretty close to pure corporate welfare.

Socialist Baby-Killers

2010-03-29T07:35:00.002-04:00

I was playing in a local bridge tournament this weekend, and before the first round I was chatting with one of our opponents. The talk turned to health care reform, and we both remarked that we didn't understand all the details yet, but it was pleasant to see that the Democrats had shown some spine and gotten reform passed.

About this time our other opponent arrived at the table. "Oh, I see you guys are a bunch of socialists," he said. "You like all this socialism and this socialist take-over of health care. You're probably baby-killers too, aren't you? Are you guys baby-killers?"

This remark encapsulated what's gone wrong with American politics. Look, there are reasons to like health care reform and there are reasons not to like it. On the one hand, you have to like the idea that most everyone will have access to health care and that your own access to health care will be protected against insurance company shenanigans like barring you for a pre-existing condition if you change jobs or dropping you just when you get sick. (I mean, really, does anyone think this part is bad in itself?) On the other hand, you can legitimately question whether it's going to work. You can wonder if it's going to help contain costs. You might think it involves too much government regulation. And you can be opposed to government telling people that they have to buy health insurance even if they don't want to (although the whole thing can't work without that part).

We could have a real discussion about whether health care reform is a good idea. But it's impossible to have a real discussion when the debate is hijacked by people who reduce everything to negative labels, whether or not the labels actually apply. I particularly dislike people who are obviously just parroting other people's talking points.

People who say that anyone who supports health care reform must be a socialist don't know what socialism is. Socialism is "a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole." A socialist government would abolish private health insurance companies altogether -- and would probably take over the hospitals and doctors too.

The actual health care reform bill that Congres passed doesn't abolish private health insurance companies (much less the private doctors and hospitals). It regulates private insurers by prohibiting them from discriminating based on health status. To make that regulation work, it requires everyone to have health insurance (otherwise only sick people would buy it and the insurers would go bankrupt). And then to make that possible it provides subsidies for those who would otherwise have difficulty buying health insurance. But health insurance will still be privately provided.

Ironically, those who decry health care reform as socialism are the very same people who attack it for allegedly weakening Medicare, which is a lot more like socialism than the health care reform law, because Medicare does involve the government itself providing health insurance. If you're so strongly opposed to socialism, you should be for abolishing Medicare, not for saving it from health care reform.

I'm a strong believer in capitalism, but I also believe some government regulation can help society. I would be happy to have a serious debate with anyone who wants to critique health care reform. I'm sure I would learn a lot from such a debate -- as I said, I don't understand all the details of the new law yet. But I can't stand listening to people who do nothing but spout canned talking points that they don't even understand.

Internet Explorer Has Stopped Working

2010-03-28T08:26:00.001-04:00

As faithful readers know, on weekends we get to relax from more serious topics.

It was nice, I suppose, that Internet Explorer 8 included tabbed browsing. There's something in it, however, that doesn't work well with Windows Vista. I guess it's too much to expect that Microsoft's web browser would work with Microsoft's operating system.

On my laptop, which runs on Vista, I use IE 8 to browse the web. A fair bit of the time, when I close a tab in IE, I get a window headed, "Internet Explorer has stopped working," with the further message, "A problem caused the program to stop working correctly. Windows will close the program and notify you if a solution is available."

Gee, I closed a tab. It was supposed to stop working -- the tab, that is. I don't need a message taking up screen space and requiring me to close it.

And then, as if that isn't bad enough, when I close the message window, a further, little window opens up in the bottom right of the screen, with the heading, "Internet Explorer was closed," and this window says: "To help protect your competer, Data Execution Prevention has closed Interent Explorer. Click to learn more."

To help protect my computer! My computer needs protection from me closing a tab!

That window, at least, fades out by itself -- it doesn't have to be closed. But really, it kind of adds insult to injury to be told that "Data Execution Prevention" has closed Internet Explorer to protect my computer when all that was really happening was that I was closing a tab.

According to some Internet sources, some "add-on" is to blame, but really, I blame the operating system. Add-on or no add-on, it should be able to tell that I've just closed a tab. Come on, Microsoft, you can do better than this.

Majority Rule -- What a Concept

2010-03-26T08:49:00.004-04:00

Here's a radical idea -- why don't we (a) hold elections, (b) let our elected representatives adopt laws by majority vote, and (c) let the people show whether they like the results by voting in the next election?

The past week has shown just how different our government could be if we used this simple system, which might be called "democracy." So long as the Senate is not tied down by the absurd, anti-democratic filibuster rule, Congress can actually accomplish big things, and what's more, it can accomplish them quickly. 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!

The minority party got its say. In the Senate, the Republicans proposed 41 amendments, all of which got a vote. They all lost, but guess what, when you're in the minority, and you propose things the majority doesn't want, you are likely to lose.

It was democracy in action. Just imagine what our government could be like if the Senate could act by simple majority vote all the time. Health care reform could have been passed months ago. All those ugly political payoffs -- the Cornhusker Kickback, the Louisiana Purchase (some of which were removed by the fix bill) -- would have been unnecessary. Congress could have done what was best instead of having to produce a legislative package held together with Scotch tape and bubble gum.

And health care reform is just one of the many things that would probably have been accomplished already. Financial reform, improved regulation of the industries that nearly destroyed our national economy and had to be bailed out to the tune of $1 trillion in taxpayer money, consumer financial protection, protection against global climate change -- all these could probably have been accomplished, or be near completion, if not for just one thing: the filibuster rule in the Senate.

That rule must go. The people voted for substantial Democratic majorities in the last election. Let the majority have its way. If the people don't like the result (as the Republicans claim the people won't), fine, vote the Dems out. If a Republican majority gets elected, let it have its way. And if the people don't like what comes of that, vote them out, and so on, until we get politicians who understand what the people want. But no one can like a system in which it doesn't matter who gets elected because nothing can ever change anyway.

Do States Have Standing?

2010-03-25T08:49:00.006-04:00

Now that 14 states have sued to block the new health care law, the next question in the continuing federalist battle over this issue is whether the states have "standing" to sue. Under federal law, you can't challenge a law in court just because you don't like it; you have to show that the law injures you in some way. Do states satisfy this standard with respect to the new health care law?

First off, this question is a good illustration of why the rules of standing law are so often silly. As I have explained at length, standing doctrine doesn't serve much discernible purpose. The new health care law, and particularly its individual health insurance mandate, are obviously going to be challenged at some point, and courts will resolve the issue of the mandate's constitutionality. States would make excellent plaintiffs to bring these challenges -- they will have good lawyers and make all the arguments against the new law's constitutionality. And an important part of the case is whether the states or the federal government should be regulating health insurance. So what do we care whether the states are "injured" in some legal sense? Is there any actual value to waiting until suit is brought by some individual who has to pay the tax penalty for not having health insurance (and who would therefore clearly have standing to challenge it)? The courts are going to resolve this law's constitutionality one way or another, and it's hard to see what difference it makes who the plaintiff is.

Having said that, there is some real doubt as to whether the states have standing to challenge the health insurance mandate. The mandate applies to individuals, not to states. According to the states' complaint, many other parts of the act affect states directly, but it's not clear how the mandate does. So the direct injury could well be lacking. And that's not to mention that the mandate doesn't even kick in until 2014, making the suit somewhat premature.

States might try to assert standing under the parens patriae doctrine, under which governments can assert the rights of their citizens. But the Supreme Court declared long ago in Massachusetts v. Mellon that the states cannot use this doctrine to sue the United States. The Court said, "It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof." That's exactly what the states are trying to do with the present lawsuit, so it seems to be forbidden. For the same reason, it seems doubtful that a state passage of a law purporting to declare that citizens of that state don't have to buy health insurance if they don't want to makes any difference to the state's standing -- that's just more of the same.

On the other hand, in the recent case of Massachusetts v. EPA the Supreme Court took a more generous view and said that states were entitled to "special solicitude in our standing analysis." The standing of Massachusetts in that case was based primarily on its ownership of affected land (which might have been swamped by ocean level rises caused by global warming), but the Court included a footnote giving a narrow reading to Massachusetts v. Mellon and hinting that states could have standing to assert "quasi sovereign interests." The same footnote also, however, reiterates that states cannot sue to protect their citizens from the operation of federal statutes.

So while one hesitates to be dogmatic, and while there are cases that could be cited on both sides, the claim of the states to have standing to challenge the health care mandate seems doubtful. If it were up to me, I would say, let them go ahead, we might as well get these issues resolved now as later, but the courts may require us to wait until an individual with clearer standing brings suit.

Health Care Mandate

2010-03-24T07:30:00.002-04:00

I've done some more media lately on the constitutionality of state laws that purport to exempt a state's citizens from the new federal health care mandate, which has led to more e-mails on this topic. I've already given a more detailed explanation of my point, but there's obviously a lot of interest in this issue, so let's go over it again.

First, here's a link to an article by Jack Balkin of Yale, which appeared in the New England Journal of Medicine, explaining in more detail why the health care mandate would be constitutional. As Professor Balkin explains, there are several constitutional bases of congressional power to impose this mandate.

The health care mandate is structured as a tax. It doesn't actually require people to buy health insurance; it taxes them if they don't. Congress has the power to "lay and collect taxes." And Congress is constantly using the tax code to incentivize or disincentivize behavior for social policy purposes -- there are all kinds of tax breaks and tax penalties for doing or not doing something. So using the tax code to incentivize buying health insurance would be in keeping with what Congress does with the tax code all the time. So Congress's taxing power supports the health care mandate.

In addition, Congress has the power to "regulate commerce . . . among the several states," and it also has the power to do everything "necessary and proper" to make its regulation effective. Remember that the main point of the health care bill is to prohibit insurance companies from discriminating among customers based on pre-existing health conditions. In order to make that prohibition effective, an individual health care mandate is necessary. Otherwise, healthy people wouldn't buy health insurance until they got sick. Only sick people would buy health insurance, and the health insurance companies would all go bankrupt. So the commerce power, combined with the "necessary and proper" power, also supports the health care mandate.

It's true, as my e-mail correspondents note, that the commerce power applies to interstate commerce. But this power has been interpreted broadly, and it has been understood to cover matters that "substantially affect" interstate commerce. Health care is commerce (in fact, it is one sixth of our national economy), and there can be no doubt that the primary goal of requiring insurance companies not to discriminate based on pre-existing conditions would substantially affect interstate commerce.

So that's why I would predict with pretty strong confidence that the individual health care mandate will be held constitutional by courts, although, as I have remarked before, the argument is not a 100% slam dunk and different views are possible. Suits challenging the new law's constitutionality have already been filed, which is perfectly proper. By all means let these suits go forward and we'll see what the courts say.

The other point, which is the main one that I have been making in the media, is that, in determining whether the health care mandate is constitutional, state law is irrelevant. And that really is a slam dunk.

If the health care mandate is constitutional, it trumps state law because, under the Constitution, federal law is the "supreme law of the land." So, again assuming the mandate is constitutional, no state can exempt its citizens from the mandate.

Of course, as noted above, it is conceivable (thought not, I think, likely) that the mandate is unconstitutional. If so, it's ineffective. But it would then be ineffective everywhere, without regard to what any state's law says about the matter.

So maybe the individual health insurance mandate is constitutional and maybe it's unconstitutional. I think it's constitutional. But in any event, no matter how you look at it, state law is irrelevant. The states that have passed laws that purport to exempt their citizens from the mandate are grandstanding. They must know that those laws are ineffective. If they want to challenge the federal mandate, by all means let them do so. We'll see what happens. But passing a state law about it is not the right means to challenge the mandate and will have no impact on whether the mandate is upheld.

Response on the Census

2010-03-23T08:30:00.004-04:00

In response to my last post, a faithful reader (one of my most faithful readers, actually), objected. I was commenting about people who are protesting the census, and faithful reader "Peter" commented:

"It seems that when dissent and protest of government action suits you (during a Republican administration, perhaps), civil disobedience is a sacred and patriotic duty. But when it doesn't suit you, it's kooky and unpatriotic.

"Ignoring the census is, for many, a form of civil disobedience. And a rather mild one at that. . . ."

Not an unreasonable point, Peter, but here are two responses:

1. There's a distinction between "dissent and protest" and breaking the law. If people want to march around with signs protesting the census (or draft registration, or income tax), that's one thing. But breaking the law -- e.g., not paying income tax, not registering for the draft, or not returning the census form when required by law to do so -- is something else. I don't enjoy paying income tax, but I do it because it's required by law. I wasn't wild about draft registration when it was instituted, but I registered, because it was required by law. I'm not saying one should never break the law (we'll get to that in the next point), but let's at least recognize that there are lots of ways to dissent from and protest public policy without actually breaking the law.

2. Yes, America has a long tradition of civil disobedience. But I only respect those who engage in civil disobedience if they're ready to accept the penalties. When Ben Sasway was upset about draft registration in the 1980s, he wrote a public letter to the President about it, saying that he wasn't going to register. He got prosecuted. I respected that. That was civil disobedience. But when people simply throw away their census forms, or don't pay their taxes, that's not civil disobedience, that's just crime. The essence of civil disobedience, I think, is that one breaks the law and accepts the penalties, in the hope of convincing society to change the law.

Of course, if the census forms were really unconstitutional, one could lawfully throw them away. But I covered that earlier. The census is constitutional and has been so held by the courts for decades.

OK, maybe the term "census kooks" was a little harsh. But really, people should do 5 minutes of research before proclaiming the census to be unconstitutional. If you just Google "census constitutional," the second result is the Census Bureau's web page citing the cases that hold the census to be constitutional. You can't just point out that the Census Clause doesn't require all the questions on the census (which is true) and proclaim the census to be unconstitutional. At least do the research. Thanks to Google, it doesn't take long.

And About Those Census Kooks . . .

2010-03-21T08:00:00.001-04:00

Last week, I scoffed at the census kooks, who claim that there's something unconstitutional about the census questions. An added thought -- aren't these the same people who get all teary eyed telling us how much they love the country?

Listen, teary-eyed conservatives, your country, which you love so much, would like just a small favor from you. It would like you to answer a few simple questions, for national statistical purposes, that will help us understand our country better. It won't cost anything, it'll only take a few minutes of your time, it's not especially intrusive, and the answers are confidential. Not much to ask, really.

But apparently too much for you! Some lover you are.

Deem and Pass

2010-03-20T07:00:00.001-04:00

As health care nears its final showdown, everyone's talking about "deem and pass," the procedural mechanism that the House may use to pass the Senate bill. Instead of voting directly on the Senate bill, the House would vote on a rule that provides that the Senate bill is "deemed" to be passed. Can they do that? Glad you asked.

1. As far as I can tell, deem and pass is constitutional. The Constitution permits each house to make its own rules of proceeding. This would be a procedural rule for passing a bill, and it would require a majority vote, so it seems OK to me. It's been used before many times.

And besides, the Senate is constantly doing things without voting on them directly. Some Senator seeks "unanimous consent" that something be deemed accomplished. This procedure is constantly used for confirmation of nominees, and it's used for bills too. Why, just this past Wednesday, Senator Durbin asked unanimous consent that the Congressional Award Program Reauthorization Act "be read a third time and passed," and the presiding officer simply said, "without objection, it is so ordered." There was no actual vote, but the bill was deemed passed. Happens all the time. If it's good enough for the Senate, it's good enough for the House.

2. Even if it's not constitutional, I don't think there would be judicial review of the problem. There's a little number called the "enrolled bill rule," which provides that if the President and Congress claim that a bill was enacted into law, the courts will not look behind that claim to see if the bill was really enacted. So even if "deem and pass" were invalid, I don't think anyone could do anything about it.

3. Having said that, why is the House doing this? As we lawyers like to say, it's not what a prudent lawyer would do. It would just give the courts an extra opportunity to strike down the whole health care reform bill on a silly procedural ground. And by the time the Supreme Court gets the case, it'll be two or three years from now, Congress will have changed, and who knows if the bill could ever get passed again. It's not a huge risk, but it is a risk.

4. And what is anyone getting in exchange? I've never claimed to understand politics, but I don't see what the advantage is in saying, "I didn't vote for the health care mandate, I only voted for a rule that deemed the mandate to be passed." Just vote for the bill, I say.

As far as I can tell, the advantage is that this way, a single vote passes the Senate bill and also gets the amendments the House wants past the House. That way, there can't be a screw-up in which the Senate bill passes but the amendments don't. (Of course the amendments still have to pass the Senate too -- that's the "reconciliation" part.)

So maybe that's why "deem and pass" is on the table, but I still think it would be better to just vote for the bill. I don't think the public understands why this strange procedure is needed, and it looks dodgy. "Deem and pass," apart from the (not very large) constitutional risk, is giving the Republicans the chance to make the Democrats look weasely. If the Dems want the health care bill, they should be proud of it and proud to vote for it.

More on Health Care

2010-03-19T09:23:00.003-04:00

While we're on the topic of health care federalism, we are so proud of the great state of Idaho, which has now actually passed the Idaho Meaningless Political Grandstanding Act -- pardon me, the Idaho Health Freedom Act, which, among other things, provides that "the public policy of the state of Idaho, . . . is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America."

As I explained yesterday, this law will have no impact on the validity of a federal health care mandate. Such a mandate might be valid or invalid, but it won't matter what any state's law says.

What's particularly cute about the Idaho law is that only covers federal penalties. In fact, the statute even defines "penalty" as something imposed by the United States. So I guess Idaho thinks it's fine for the state to push people around with regard to health care choices. Which is not a wholly indefensible position from a federalism perspective, but is somewhat bizarre if one thinks the issue is really about personal freedom.

Federalism in the News

2010-03-18T14:57:00.011-04:00

I've been getting a lot of e-mail (some sensible and restrained, some apoplectic and vituperative) because I told CNN that state laws that purport to exempt a state's citizens from the proposed federal health care mandate would be ineffective. My correspondents ask, what about the 10th Amendment? How does Congress have the power to mandate that we all buy health insurance? Here's a little more detail:

1. By virtue of Article I, section 8 of the Constitution, Congress has the power to "regulate Commerce . . . among the several States." This power has been understood broadly, and includes the power to regulate matters that substantially affect interstate commerce.

Health care is commerce. That is why Congress has power to regulate it, including the power to impose a health insurance mandate. Doing so would substantially affect interstate commerce.

The Tenth Amendment would not affect Congress's power in this regard. The Tenth Amendment concerns "[t]he powers not delegated to the United States by the Constitution," but the power to regulate commerce is one of the powers that is "delegated to the United States by the Constitution."

2. I recognize that point #1 is not a 100% slam dunk. Someone will surely challenge the federal health insurance mandate (if it gets passed), and it is conceivable -- though, I think, unlikely -- that the Supreme Court will hold it to be outside the scope of Congress's commerce power. But that's not what I was saying to CNN anyway.

The point I was making to CNN is that whether any particular state passes a law prohibiting health insurance mandates in that state is irrelevant. That's because federal law trumps state law. The Constitution provides that federal law "shall be the supreme Law of the Land." So where state and federal law conflict, federal law wins.

That's why, for example, the Supreme Court has held that Congress (using its commerce power!) can prohibit the use of marijuana, even in states, like California, that expressly permit marijuana use for medical purposes. The Court specifically said, "state action cannot circumscribe Congress' plenary commerce power." In other words, federal law trumps state law.

So if Congress passed a law requiring everyone to buy health insurance, that law would trump any state law that says that no one in the state has to buy health insurance.

Of course, to be supreme, a federal law has to be constitutional. So yes, someone could challenge the constitutionality of a federal health insurance mandate. Maybe it would be constitutional, maybe not (I think it would be). But in any event, it wouldn't matter what any state's law said.

That's the point that I was making to CNN. Some states are passing or considering laws that declare that there are no health insurance mandates in those states. Those laws are pure political grandstanding. They will have no effect of the validity of a federal health insurance mandate. The federal health insurance mandate might be valid or invalid, but it will be valid or invalid everywhere, without regard to the law of any state.

Census Kooks

2010-03-18T07:00:00.004-04:00

As faithful readers know, I have an interest in "tax protestors," who are kooks who believe that there's no law that requires payment of federal income taxes. Every ten years, these tax kooks are joined by census kooks, who proclaim that people shouldn't fill out their census forms.

The latest nonsense along these lines is the idea that the census is unconstitutional because it asks for more information than the Constitution authorizes. The Constitution, the argument goes, only allows the government to gather sufficient information to apportion the House of Representatives, which would require only knowledge of how many people live in each place. Depending on how far this argument is pressed, it could theoretically mean that the census isn't even allowed to ask people for their names, but it would certainly suggest that the census isn't authorized to ask for people's race, age, or home ownership status, as in fact it does. People who should know better, including Cato Institute members and members of Congress are pushing these arguments.

It's always tiresome to see people making arguments like this without doing even the most basic research. As can be easily discovered on the Census Bureau's website, courts have considered and upheld the constitutionality of the census. As early as 1870, the Supreme Court used the census questions as an example of a "power [that] may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive." Legal Tender Cases, 79 U.S. 457, 536 (1870). The Court did not have the census before it, so technically it did not pass on the issue, but it used the extra census questions as an example of something that was not specifically provided for in the Constitution, but was so clearly constitutional that no one would even question it. Other court cases, cited on the Census Bureau website, specifically uphold the constitutionality of the census against the objection that it gathers unnecessary information.

The census kooks conveniently ignore the fact that Congress, in addition to its specific powers, has the general power to do all things "necessary and proper" to carry its powers into execution, and this power has always been read broadly. As one court that considered a challenge to the census pointed out, the Census Clause only requires the gathering of enough information to apportion the House of Representatives, but nothing in the clause forbids the gathering of additional information, and if the information is "necessary and proper" to the intelligent exercise of Congress's powers, it is perfectly constitutional for Congress to gather it, and there can be no objection to doing so through the convenient mechanism of the census. United States v. Moriarity, 106 F. 886 (C.C.N.Y. 1901).

So census protesting seems about as logical as tax protesting. But having said that, let me add that if census kooks want to throw their census forms in the trash, fine, it'll just end up helping people like me. The more people refuse to fill out the census, the fewer representatives their states will get, and the less federal money too. So go ahead, census kooks, we all know which states you're mostly from, and if you want those states to get less representation in the House and less federal money, those of us who will end up with more representation and more federal money aren't going to complain too much.

How Stupid Are We?

2010-03-17T08:19:00.006-04:00

Let's see how long it takes you to solve the following problem, which is currently baffling the D.C. government:

D.C. law provides that, when it's time to release someone from jail, the release shouldn't take place between the hours of 10 pm and 7 am. That makes sense, right? Shoving an inmate out the door at 2:30 in the morning probably isn't the best way to reintegrate him into the community.

The only problem is that the D.C. Attorney General determined that the law is unconstitutional because it results in inmates having to serve a longer time in jail than their sentence -- only a few hours longer, perhaps, but longer nonetheless. And you can't hold people in jail once their sentence is up.

So, the jail is still releasing people in the small hours of the morning, which isn't good.

Hmmm . . . how could we possibly solve this problem?

D.C. Council member Phil Mendelson has an idea that's almost a parody of big government solutions to problems: he's introduced a bill that provides that if the jail releases someone between 10 pm and 7 am, the jail must ensure that the inmate has a ride and housing and street clothes. If that can't be assured, the jail must release the inmate between 7 am and 10 pm.

Oh, no, warns the Attorney General, that will just lead to more unconstitutional holding of inmates after their sentences are up.

Sheesh! I mean really, sheesh! How can we be arguing about this! Is the D.C. government really so dumb that it can't see this has a completely obvious solution?

Here's the solution: let the D.C. Council pass a bill that says that if an inmate's sentence is up between 10 pm and 7 am, the sentence is automatically deemed to be shortened to the point where it is up at 4 pm. In fact, let's apply that rule to any inmate whose sentence expires after 4 pm. We'll let inmates out a few hours early. Everyone gets out no later than 4 pm.

Obviously it makes no difference in terms of giving the inmate an appropriate punishment, and it makes sense in terms of letting them out in a civilized way.

Gosh, that was easy. What's the problem? I am really stunned that this seems to be a big to-do when the solution is so obvious.

And by the way, are sentences really calculated in hours? Why do sentences expire at 2:00 am anyway? I guess perhaps they run from the moment someone is taken into custody, so that if they were arrested at 2:00 am, then the sentence expires at 2:00 am. OK, fine, I guess I can see how the problem arises, but the solution is so simple I really can't believe the D.C. Council is tied up in knots over it.

Heard It Here First

2010-03-16T07:47:00.008-04:00

Remember that runaway Prius? Faithful readers will recall that I immediately wondered whether the story might be a hoax. It didn't ring true -- if your car were running away with you at speeds of up to 90 miles an hour, I asked, would you reach for the gear shift, the ignition key, or your cell phone? Cell phone seemed like an odd choice.

Lo and behold, questions are emerging about the story. Both NHTSA and Toyota find that they can't replicate the problem. Toyota says that the car's brakes were working and would have stopped the car if firmly depressed. Meanwhile, the driver's lawyer says that the new findings don't cast doubt on the story.

My question is, why does the driver have a lawyer?

Once again, I'm not accusing anyone of anything and I'm not saying that the story is a hoax. But it sure is puzzling.

Oh, and by the way, James Sikes, the driver? Apparently he filed for bankruptcy in 2008 and had more than $700,000 in debt (including $19,000 owed on the Prius). Does that make anyone say "hmmmmm"?

And when he called 911, the operator repeatedly told him to shift into neutral. He didn't -- because he was afraid it might slip into reverse.

More hmmmmming.

Stay tuned.

Happy Pi Day

2010-03-14T11:46:00.001-04:00

Google has a pretty celebration of pi day (3/14). Happy Pi Day to all old math geeks out there!

Who Signed This Complaint?

2010-03-12T08:15:00.004-05:00

So watch this e-trade ad, featuring those annoying talking babies, and ask yourself, whose right of publicity does it violate?

Of course! Lindsay Lohan!

That's right, Lindsay Lohan is suing e-trade (really!) on a claim that, because the "milkaholic" baby is referred to as "Lindsay," the ad exploits Lohan's identity to tout e-trade.

OK, there is something called the "right of publicity," and it does prevent companies from using the name or likeness of celebrities (or non-celebrities, for that matter) in their advertising without consent. And it's true, the cases show that a use doesn't have to involve the celebrity's full name or likeness to count -- it's enough that the ad uses something "associated with" the celebrity. Thus, a maker of port-a-potties was successfully restrained from calling them "Here's Johnny," because that phrase was so associated with Johnny Carson, and a maker of copiers was successfully restrained from running an ad featuring a robot in a blond wig in front of a board of big letters that was reminiscent of Vanna White on Wheel of Fortune.

But the key to both cases is that the ads conjured up the identity of the celebrities involved by using things strongly associated with them. Here, the only thing involved is the first name, "Linsday," which is a common name. Oh, and I suppose it's true that the ad calls the baby Lindsay a "milkaholic," and Lindsay Lohan has her own famous substance abuse problems. But it's beyond silly to say that the ad violates Lohan's right of publicity. Celebrities don't own their first names, particularly when the name is common. I suppose if the baby were called "Paris" there might be something to argue about. But this suit is a publicity stunt.

Maybe Lohan will be trying to suppress this ad too.

Poor Bubby

2010-03-11T07:46:00.002-05:00

That poor, put-upon John Roberts. He's only the Chief Justice of the United States, and he actually had to sit there in silence while the President criticized the Supreme Court's decision in Citizens United during this year's State of the Union address. Now the Chief Justice is calling the President's remarks "very troubling." It wasn't absolutely wrong for the President to criticize the decision, the Chief Justice says, but the setting and the circumstances made the President's actions inappropriate.

What nonsense. Let's get this straight. According to the Chief Justice, it's perfectly OK for the Supreme Court to diss the entire Congress and the President too, by striking down the campaign finance laws that Congress passed and the President signed. That kind of critique has actual effect: the Supreme Court officially undoes the official handiwork of the other branches. And that's perfectly fine.

But whoa, we can't have the President talk about and criticize the Supreme Court's decision, even though that kind of critique has no official effect whatever, and at worst gives a few Supreme Court Justices an uncomfortable moment.

The Chief Justice is mistaken. But he's only doing what so many in Washington mistakenly do -- thinking that form is more important than substance. He thinks talking about what another branch does is a harsher, nastier treatment than officially negating what another branch does.

When asked whether the President's speech was appropriate, a better answer for the Chief Justice would have been, "the President, or anyone else, has every right to criticize the Supreme Court's decisions. Of course, the Supreme Court Justices and other federal judges are given life tenure by the Constitution so that we don't have to worry when people criticize us. The President is free to say what he wants, but it will have no effect, either way, on the Court's decisions."

And by the way, Mr. Chief Justice, no one is forcing you to attend the State of the Union address. If you're too delicate to be criticized, stay on your own turf.

Fishy Story

2010-03-09T22:26:00.003-05:00

The story of a man who called police on his cell to report that his Toyota was experiencing uncontrolled acceleration is getting a lot of play. Has anyone considered that this might be a hoax? I'm not saying that it is, but really, if your accelerator were stuck and your car was just going faster and faster and you couldn't stop it, would you reach for your cell phone? Of the possible responses, that seems like one of the dumber ones. How about shifting into neutral? That's what all the driver's ed books recommend. Sure, it's a little tough to find neutral, under pressure, while keeping your eyes on the road, but it's got to be even tougher to grab your cell phone and dial 911. And if shifting into neutral doesn't work, I think I'd try turning off the engine before I'd haul out my cell. Making phone calls while driving is dangerous enough if you can control your car -- it's got to be pretty damn dangerous if you can't.

So while I'm not accusing anyone of anything, I'm just saying that I won't be surprised if this whole story turns out to be made up. Kind of like calling the police to report that your son was carried off in a balloon. Has anyone checked to see whether the guy in this story is a reality TV personality?

Protection Racket

2010-03-08T10:14:00.002-05:00

A truly annoying ad has started popping up on some websites I frequent: somehow it slips through your pop-up blocker and pops up a window that offers to scan your computer for viruses. Then it purports to actually start scanning your computer and to find some viruses, and then it asks whether you want them removed.

All of this would be annoying enough, but what really gets your goat is that when you click on the close button, the program refuses to close. It just pops up another window asking if you're sure you want to decline this great and necessary virus-clearing service, and it's not clear whether you should click "OK" or "Cancel" to get rid of that. As you try to close, it just keeps popping up more and more windows, until finally you have to close the whole website you were trying to visit in the first place and start over. Basically, it claims to offer protection, but what you most need to be protected from is this annoying ad!

This sort of thing should be illegal. I don't mind Internet ads -- someone has to pay for all that free content -- but programs that refuse to close are over the line.

Don't click here unless you want to experience this annoying sponsor.

Oh No, Majority Rule!

2010-03-04T09:24:00.003-05:00

For an example of the rhetorical lengths to which some Senators will go, check out Senator Orrin Hatch's op-ed against the use of "reconciliation" to pass the health care bill. Reconciliation is a technical procedure under which certain kinds of legislation are allowed to pass the Senate with a mere 51 votes -- a majority, in other words. Hatch claims that although this process is attractive because of its limitations on debate, "the Constitution intends the opposite process" -- apparently, one with unlimited debate.

What nonsense. The Constitution doesn't specify procedural rules for either house of Congress; it just provides that "Each House may determine the Rules of its Proceedings." (Art. I, sec. 5) Certainly the Constitution doesn't provide the rule that a minority of either house can prevent that house from taking action. That absurdity results from the Senate's ill-conceived Rule XXII.

The basic assumption of the Constitution, not expressly stated but inherent in the "common Parliamentary law," is that a majority of either house can pass any bill. Hatch is utterly wrong to state that the Constitution "intends" any other process.

And by the way, that's before we even get to the fact that a 60-member supermajority did pass the Senate health care bill in the last session. Apparently the plan is for the House to pass that bill, and then for reconciliation to be used only to modify the plan with purely fiscal details. So while it may be true that the Senate's rules wouldn't permit reconciliation to be used for the whole health care plan, that's not what it's going to be used for.

And in any event, it would be perfectly, 100% constitutional for 51 Senators to vote the entire health care plan through the Senate, if only the Senate's silly rules didn't stand in the way. The Constitution creates enough obstacles to federal legislation, but it didn't create the filibuster rule.

Bunning's Barrings

2010-03-02T15:11:00.002-05:00

I understand why Senator Jim Bunning's lone objection to consideration of a measure to extend unemployment benefits is a thorn in the side of Senate Democrats (and some Republicans too). Even though there are ample votes to pass the measure, and even ample votes to block a filibuster on the measure, a long objector can tie the Senate up in knots. As I've explained before, the objection of even one Senator can force a debate and a vote on something, and the debate can end only following a successful cloture vote. And the kicker is that even a successful cloture vote doesn't immediately terminate debate and lead to a vote on the measure under consideration; it just starts a clock of 30 hours of debate, which is then followed by the substantive vote. And it typically takes at least two such votes to pass anything. So without unanimous consent, a single Senator can tie the Senate up for 60 hours of debate, and that's a lot of precious floor time.

But what I don't get is this: if there's really only one Senator objecting, why not just wait until he's off the Senate floor? He can't be on the floor every minute. If the Republicans as a group oppose something, then they can have someone on the floor at all times to object. But if most Republicans are for something, and just one Senator is gumming up the works, then seek unanimous consent when he's not there.

Even if Senate customs require advance notice of unanimous consent requests, fine, give advance notice that unanimous consent will be sought every five minutes -- 100 times a day if necessary. Have 20 different Democratic Senators make the unanimous consent request at their leisure, while Bunning is forced to spend every minute on the floor. I don't think he'll be able to afford to spend that kind of time on the floor indefinitely. Eventually he'll miss one of the requests, and it'll go through.

Peer Review

2010-03-01T14:25:00.003-05:00

A surprising new trend at law reviews: A couple of my colleagues have received requests this past week to conduct peer review of articles proposed for publication at other schools' law reviews.

How long has this been going on? I've routinely received such requests from my own school's law review (GW). But I've never received such a request from another school's review, or even heard about anyone else's receiving such a request. Maybe it's been going on for years and I just didn't know, but I would have expected to hear about it.

Is it a good thing? On the one hand, law review scholarship is crying out for peer review. That's the method used in other disciplines. Scholarly legal publication is exceptional in that it doesn't use peer review -- and the publication decisions are made by students, to boot. So why not institute peer review? Good for those students who have recognized that they could benefit from faculty input.

On the other hand, there are at least some perils to instituting peer review in a discipline that isn't used to it. There's at least some potential for strategic behavior and conflict of interest. If I were asked by Harvard or Yale for comments on someone else's piece, of course I would give my honest opinion, but is it not at least a potential problem if I have submissions pending there myself -- as I usually do? Then I have an interest in having other pieces get rejected. (This isn't such a problem when a law review seeks advice from faculty at the same school, because most faculty can get published in their own school's review when they want to and so have less of an interest in whether other authors get published there.)

Presumably, disciplines that regularly conduct peer review have thought about these problems and have worked them out somehow. Maybe they have an honor code for peer review? Also, there's probably less potential for conflict in other disciplines, because they don't have multiple simultaneous submission. In law, everyone submits their pieces to all the top journals every year, so most everyone always has something pending everywhere.

As I say, I would submit honest comments anyway, as I expect most law professors would, but the problem is at least something to think about. Students deserve kudos for seeking faculty input on publication decisions, but at the same time I'm surprised that there hasn't been more academy-wide discussion and vetting of this new trend.

Yet More Media

2010-02-26T07:00:00.000-05:00

It's been a big media week for Law Prof on the Loose. I was in a story on the local FOX news last night. You can see it here.

The story was about all the money DC is paying out in settlements in lawsuits over alleged police and other public misconduct. As usuall, the 5-second snippet of me consists of the most contentious thing I said. They show me saying that defendants are usually happy to string out cases and maybe wear down the plaintiff. Which is true, but my larger point was that defendants, without doing anything wrong or unethical, make decisions about what to do based on cost-benefit analysis. If setttling a case is cheaper than the expected cost of going forward to trial (and bearing in mind the effect on other cases of either course of action), a defendant will settle. There are lots of considerations, but the main one is figuring out the lowest cost course of action.

Watch What You Say

2010-02-25T07:00:00.003-05:00

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.

About Time

2010-02-24T07:00:00.000-05:00

It's only been 52 years since Congress decreed that corporations are deemed to be citizens of their "principal place of business" for diversity purposes, so it was about time the Supreme Court got around to deciding what that means. The circuits have spent decades debating between the "muscle" test, which considers that the principal place is business is the place where the corporation does its main business activity, and the "nerve center" test, which locates the p.p.o.b. at the corporate headquarters. The statute has meant different things in different parts of the country all this time.

Finally, the Supreme Court has stepped in and settled the debate. The principal place of business is the nerve center -- the corporate headquarters. It was unanimous, and the Court even wrote a pretty good opinion, pointing out that the nerve center test has the virtue of being easier to apply, even though it will lead to occasional anomalies.

The only question is why it took so long!

Go Fish

2010-02-23T21:16:00.004-05:00

Let me get this straight. As you're eating a filet o' fish sandwich at McDonald's, the company wants you to be thinking, "you know, what I'm eating used to be an actual fish, swimming around happily in the water somewhere. I'm eating something that used to be alive. And how would I like it if some fish were eating me?"

What else could explain the strangely macabre ad series that McDonald's is using to push this sandwich? A man buys a filet o' fish sandwich at a drive thru, but before he can take a bite, he gets a call on his cell phone from -- a fish! And the fish, which is stuffed and mounted on a wall, sings to him, "Give me back that filet o' fish! Give me back that fish! What if it were you hanging up on this wall? If it were you in that sandwich you wouldn't be getting this call!"

The man dumps his cell out the window and takes a big bite out of the sandwich, but is that what you would do? If you're not a vegetarian, presumably you've made your peace with eating fish and animals, but do you really want to think about it as you're eating?

Sheesh, what a weird ad.

Tax Protestor Redux

2010-02-22T10:38:00.005-05:00

Was Andrew Joseph Stack, allegedly the man who flew a plane into a building containing IRS offices, a "tax protestor"? Some commenters on Saturday's post say yes, and some news organizations follow suit. But I disagree.

Of course, anyone is free to use any definition they want -- it's not as though these matters are regulated by some Tax Protestor Standards Board -- but in my view Stack lacked the essential qualities I have in mind when I call someone a tax protestor.

Let's consider the things Stack apparently did, as revealed in his alleged suicide note. As I noted on Saturday, he doesn't give all the details, so we don't really know what he did, but apparently he (1) tried to shield his income from taxes by creating a fake church, (2) failed to report distributions from his IRA as income, and (3) failed to report some of his wife's income, allegedly because of mistakes by his accountant. Does that make him a tax protestor?

There's a difference between a tax protestor and an ordinary tax cheat. Lots of people cheat on their taxes. Certainly, not reporting income does not by itself make someone a tax protestor.

In my mind, the first essential element of being what I call a tax protestor is that the person believes, or at least claims to believe, that what he is doing is lawful. Tax protestors claim that they're not evading taxes. They claim that there's no law requiring them to pay taxes, or that the tax law is unconstitutional, or that some obscure section of the tax code makes all domestic income nontaxable, or some such nonsense. So again, just failing to report income (as in items 2 and 3 above) doesn't qualify.

Second, in my view, tax protestor arguments are not just about pushing the envelope with regard to ambiguous loopholes in the tax code. When I call someone a tax protestor, I mean that their argument is so outlandish that no reasonable person could entertain it.

That's why I exclude Stack's escapade with the fake church. That comes closest to the flavor of tax protest -- Stack says he joined "a group of people who were having 'tax code' readings and discussions" and that they "carefully studied" the code and did everything necessary to make it legal not to pay taxes. That's the kind of thing that goes on at the absurd "seminars" offered by prominent tax protestors.

But what's different here is that the position doesn't seem nearly so outlandish as tax protestor positions. Again, it's hard to judge without knowing more detail about what Stack actually did. But churches are tax exempt. And the question of what constitutes a "church" is pretty complicated. The question of what constitutes a genuine religious belief is obviously delicate, and some organizations that initially arose in a secular context have successfully transformed themselves into tax-exempt religions (e.g., the Church of Scientology).

So either Stack believed that he and his buddies could successfully declare themselves to be a religion, or he was deliberately scamming. Either way, it's just not what I would call a tax protestor argument. There's a difference between trying to exploit one of the genuinely ambiguous loopholes in the tax system and having a crazy argument that most people don't have to pay taxes. I would feel the same way about someone who tried to claim most of their home as a home office, or who claimed their hobby expenses as business expenses, or who got involved in some sophisticated but phony tax shelter.

Finally, I would say that Stack's manifesto, and his life story as revealed in it, just don't have anything like the flavor of tax protest. Stack argues about whether it was right for the tax code, as changed in 1986, to forbid companies from treating software engineers such as himself as independent contractors. He says this change in the tax code made it impossible for him to succeed in business. He also says that one year he "decided that it would be irresponsible not to get professional help" with his taxes, so he gave all his information to an accountant and got screwed because the accountant failed to report some of his wife's income.

These are not the actions of a tax protestor. A tax protestor would be saying that income tax is entirely optional, that wages are not income, that you don't have to file because Form 1040 doesn't have an OMB control number, or crazy stuff like that. A tax protestor wouldn't get screwed by an accountant's mistake because a tax protestor wouldn't turn to a real professional for help with his taxes. A tax protestor wouldn't complain that the 1986 tax changes had doomed his business, because a tax protestor wouldn't recognize that there was any obligation to pay taxes to begin with.

As I see it, Stack may have tried to cheat on his taxes with his fake church scam. He may have failed to report income. And he certainly had a lot of disagreements with the tax code. But he's not what I have in mind when I use the term "tax protestor." Of course anyone else can use a different definition. But that's what I mean by the term.

As I remarked on Saturday, this result is somewhat ironic and shows that the term "tax protestor" is not a very good term. Someone who flies a plane into a building to protest his disagreement with income taxes is certainly what you would call a "tax protestor" if you didn't know the meaning that the term has developed. And someone who claims to agree completely with the tax code but who denies that it requires payment of income taxes would better be called a "tax denier." But for whatever reason, the term "tax protestor" has come to mean someone who has an outlandish theory about why the law doesn't require payment of income taxes. Stack may have been a tax cheat, but I wouldn't call him a tax protestor.

A Real Tax Protestor

2010-02-20T12:17:00.003-05:00

By now you've all seen the terrible story of the man, apparently Andrew Joseph Stack, who flew a plane into a building housing some IRS offices because he was furious over various tax issues.

Faithful readers know that I have an eccentric interest in tax protestors. Curiously enough, as I explained to a Dow Jones reporter yesterday, Stack was not really a "tax protestor" as that term is commonly used. The term "tax protestor" is generally used to refer to people who, for various absurd and ridiculous reasons, claim that most Americans have no legal duty to pay income taxes. Stack, by contrast, understood that the law required him to pay taxes; he was just damned upset about it.

As tax protestors themselves plaintively point out, the term "tax protestor" is not really apt for use in describing them. They are not "protesting" taxes; they are just claiming (absurdly) that the law doesn't require them to pay tax. They might more accurately be called "tax deniers," a term coined by Dan Evans on the analogy of "Holocaust deniers." But even Dan himself calls them "tax protestors." That's just the term most people use.

Now Stack was a real tax protestor. He took action to protest his tax obligations. His terrible story shows what can happen when the country is filled with people spewing hateful anti-government rhetoric. I'm sure most people who do so don't ever plan to use violence and don't even particularly wish it to happen. But you can only call government agents so many horrible names, of which "jack-booted thugs" is one of the less caustic examples, before some crazy people will go over the edge. Hate groups are indirectly responsible for these terrible crimes.

Stack's suicide note, incidentally, shows that while he was not, as I say, a "tax protestor" in the usual sense, he wasn't exactly an upstanding taxpayer either. He doesn't give all the details of his past tax problems, so one can't be sure exactly what happened, but it seems like (1) he tried to take advantage of the special tax treatment of churches by organizing a fake church, (2) he claimed to have no income in a year in which he cashed out an IRA, which counts as receiving income, and (3) he claims to have been screwed over by the tax law changes made in 1986. The second point sounds like it could be an honest mistake that might happen to anyone, but the first point sounds like a deliberate scam, so I'm less inclined to give him the benefit of the doubt (and that's before we consider that he later flew an airplane into a building full of innocent people). As to the third point, I'm not up on all the details of the tax change Stack complained about, but I will say that the 1986 law had a big impact on my own family, as it basically made the previous line of work of some members of the family impossible. But no one in my family flew an airplane into a building. They just shifted their line of work.

So Stack was a terrible man and his story has a terrible ending. But just in case you thought you'd seen the stupidest thing a tax protestor could ever say, surf on over to Larken Rose's website (he's a convicted criminal, tax protestor, and self-described anarchist), and check out this statement in which he discusses Stack and says "generally I have to praise him for what he did."

Tape Delayed Frustration

2010-02-19T07:00:00.002-05:00

Michael Rosenberg of Sports Illustrated complains that it's impossible to enjoy the Olympics because so much of the coverage is tape-delayed (even though the games are being held in our own longitude this year) and it's impossible to avoid finding out the results of the events before seeing them.

I agree that this is a big frustration -- it's hard to enjoy a sporting event if you already know the result. I'm kind of upset at my favorite news websites for telling me results before I want to know them. But the same technology that brings us instant results could easily shield us from them if only editors would use a little intelligence.

It's simple: news websites, instead of splashing "Vonn Takes Gold" across their home page, should have a prominent link marked "Olympic Results." Then people who want to see results instantly wouuld only be one click away from them, and people who don't want results thrust upon them involuntarily wouldn't click the link.

Sheesh, is that so hard? News websites don't publish spoilers in the headlines of their movie reviews. When a story or a review contains a spoiler pretty much everybody follows the convention of giving a spoiler warning. So why not do it for Olympic results?

Plagiarism's Defenses

2010-02-18T07:18:00.010-05:00

Jack Shafer of Slate magazine has been on a campaign against plagiarists for a long time -- and a good campaign it is, too. I don't like plagiarists, either. I once nailed a GW student for outrageous plagiarism in our school newspaper (he had copied his entire column from a website).

But I think Shafer goes a little too far in his recent derisive analysis of plagiarists' excuses. Shafer provides a list of excuses and explanations that plagiarists commonly give -- that they lifted only a little, that the material lifted was so bland and boilerplate that it doesn't count, and so on.

Shafer is right that plagiarists typically come out with the same tired excuses every time. But where I think he goes too far is that Shafer seems to believe that plagiarism is what the law would call a "strict liability" offense, whereas I would say that, like most offenses, plagiarism has an actus reus (bad act) and a mens rea (required mental state).

Thus, excuse 7 on Shafer's list is "He didn't really plagiarize because the lifting wasn't intentional." Shafer seems to think that this excuse, even if proved, wouldn't constitute a defense (he describes his excuse list as "evasions" that "allow the plagiarist to displace the key question of whether his copy was adequately sourced with the more delectable conversation about the plagiarist's mental state").

I think it would. Suppose it really happened (as many plagiarists claim) that a writer accidentally got confused about who had written a sentence and included in his finished work a sentence lifted from somebody else (because, for example, he kept his research notes and his original work in the same file). That's bad, negligent work, but in the law we usually distinguish between negligent and intentional wrongdoing. If you got confused and accidently took someone else's physical property, believing it to be your own, you'd have to give it back, but you wouldn't have committed the crime of theft. A similar rule should apply to literary property.

One might argue that every writer has an absolute duty to avoid copying and that any violation of this duty is plagiarism, no matter how unintentional. But I would say that goes too far. We should distinguish between intentional and unintentional copying.

Therefore, I would say several other excuses on Shafer's lists aren't as irrelevant as he thinks either. They go to the credibility of the claim that copying was unintentional. If the text copied was bland and boilerplate, if the writer was working late, if the writer lifted only a little, all of these things are relevant to the likelihood that the copying was really unintentional.

So I wouldn't dismiss the excuses on Shafer's list as quickly as he does. In my view, the problem with some of these excuses is not that they wouldn't, even if proved, constitute real defenses, but that they are so often utterly implausible. A plagiarist says, "sorry, I kept my research notes and my own writing in the same file and I got confused about which was which," but the amount copied is so great that it's not remotely plausible that it happened by accident. The plagiarist is just lying. In my experience, the amount copied is usually a good guide to plausibility (and searching the accused's other writing can help, because most plagiarists are serial offenders).

If you drive negligently and kill someone, that's obviously a bad thing, but it's not nearly as bad as if you deliberately run someone down with your car. One is murder, the other not. Mental state matters.

I know it makes plagiarism cases messier if you have to worry about the accused's mental state. It would be simpler if we could just compare the texts, decide if too much was copied, and be done. But that's true in the law too. It would be simpler if we could just decide whether the defendant killed someone and not listen to his explanation of how it happened by accident. But justice demands that we distinguish negligent from intentional misbehavior.

Fixing Figure Skating

2010-02-16T08:58:00.002-05:00

Figure skating needs to be fixed, because it is fixed: a recent study by Eric Zitzewitz, an economist at Dartmouth, suggests that figure skating judges are still favoring their own nation's athletes and trading votes with other nations in shadowy blocs.

Of course, everyone knew figure skating was rigged long before the famous controversy at the 2002 Salt Lake City winter Olympics, where judges apparently colluded to give the pairs gold medal to the Russians. It's been obvious for decades that figure skating scores reflected bias, favoritism, and Cold War politics.

The solution put in place after 2002 was to anonymize the judge's scores. Scores now appear without judges' names or nationalities attached. Which judge gave which score is secret. Organizers believed that the bad actors who try to rig the events would be less likely to bribe judges if they couldn't tell whether their judge had performed his or her part of the illegal bargain. But Zitzewitz's study claims that the fix isn't working.

My colleague Michael Abramowicz actually came up with a great solution for this problem some years ago. (Unfortunately his article is not easily available on line.) Michael specializes in dreaming up market-based mechanisms that -- he claims -- will solve social problems without the need for centralized human control. His figure skating idea is a real winner.

The solution is so simple: rate and rank each figure skating judge based on how close the scores he or she gives are to the average score given by all the judges. That is, suppose a given competitor gets an average score of 54 (or whatever, I don't understand the scoring scale anymore) from all the judges. An individual judge who gave that competitor a score of 54 would get a perfect rating for that competitor. A judge would gave a 53 or a 55 would get a very good rating. A judge who gave a 51 or a 57 wouldn't do quite so well, and so on, until a judge who gave an outlier score like 46 or 62 would get a really bad rating.

Then it's just a matter of cumulating the judges' ratings over time and rewarding them accordingly. Either their pay could be adjusted, or, perhaps even more important, only the top-rated judges could advance to judging higher levels of competition, particularly the Olympics. And bad judging ratings at the Olympics would mean those judges wouldn't get to judge in future Olympics.

The beauty of this scheme is that, without the need for some ultimate official to determine the ideal, "correct" score for any competitor, it will give figure skating judges a strong incentive to try to score each competitor the way they think the competitor really ought to be scored, because their goal will be to give a score that all the other judges will give too. It's a beautifully simple, self-correcting system that could, I think, really work to solve the problem of subjectivity in figure skating judging.

In the Post

2010-02-15T08:18:00.002-05:00

Law Prof on the Loose had a letter in the Post yesterday -- you can see it here.

Knit One, Curl Two

2010-02-14T08:00:00.004-05:00

I think I could handle curling if it weren't for the brooms. If people want to play slow-motion shuffleboard on ice, that's fine. But the brooms have to go. They're what transform this so-called sport from something only slightly silly into an international punch line.

As I've remarked before, the Olympics are strangely compelling. They make us care deeply about sports we'd never even watch any other time -- track and field, swimming, speed skating, cross-country skiing. OK, maybe not cross-country skiing. Even during the Olympics, it's hard to care deeply about that. But at least we don't laugh at it. It looks like a tough, gritty, challenging sport, even if it's not exactly exciting to watch.

But curling is the synchronized swimming of the winter games. I'm sure there's all kinds of skill and subtlety to it that viewers can't appreciate. I'd probably fall down if I tried it. But that doesn't stop me from laughing when I see it presented as a medal sport in the Olympic games.

And the real killer is the brooms. Look, just launch the stones at the target. Then at least the game would be dignified. You could compare it to archery or riflery. It still wouldn't get big ratings, but at least it wouldn't be the butt of so many jokes. But with those brooms in there, you might as well have people blowing on the stones as they go down the ice. While wearing tutus. Lose the brooms, and you'd have something resembling a sport.

More Snow Economics

2010-02-11T12:32:00.002-05:00

It's a beautiful day outside and I would say we definitely could have held school today, no big deal. Maybe we would have needed a delayed start, but canceling classes altogether was a mistake. We're going to have to work harder down the road to make it up.

What about other businesses? Are they really hard hit by this week's snow? I would say some yes, some no. The key is whether customers will do extra business later to make up for this week's loss.

The little luncheonette in my school building will definitely suffer. It's lost a week's sales and people aren't going to be buying extra lunch next week to make up for it. On the other hand, grocery stores did extra business ahead of the storm and will do extra business afterwards. In fact, probably groceries get a net plus because more people stayed home and cooked instead of eating in restaurants. And I would think durable goods sales would hardly be affected at all. If you were in the market for a couch, you didn't buy one this week, but you're not any less in the market for it as a result.

So sellers of something that you either use immediately or go without are hurt. But sellers of lots of kinds of goods and services will be fine, I would imagine -- they'll have a slack week but get extra business next week.

Big Media v. Big Auto

2010-02-10T11:30:00.002-05:00

Enough with the snow posts, I'm tired of it.

I was at the gym yesterday (today the gym closed at 10:00 am, of course, even though the Rite-Aid on the same block is open), and while there, I saw a CNN report on the Toyota recall. The thrust of it was that experts consulted by CNN question whether Toyota really understands what is causing the unwanted acceleration problem with its vehicles. CNN suggests that the problem stems from electronic devices causing interference with the engines' electronic controls. Toyota insists that the problem is mechanical and that they know how to fix it.

Watching the report, I got a sad sense of overhyping by CNN (the print version linked above is slightly more guarded than the video version I saw). It's difficult to know whom to trust. Toyota has an obvious incentive to say that it has solved the problem. So I appreciate that its statements have to be regarded with some suspicion, as CNN copiously pointed out. But what CNN didn't point out is that CNN itself also has distorting incentives. The story "Toyota doesn't really know what's wrong with its cars and is lying about it" attracts a lot more viewers than the story "Toyota has everything fixed -- just take your car in as per the recall and everything will be fine." So CNN has an incentive to promote those experts it can find who will say bad things about Toyota.

Watching the report, I got the sense that while the experts portrayed are skeptical of Toyota's statements, CNN was positively goading them into saying more than they really believed based on their expertise. It would have been more balanced if CNN had commented on its own incentives as well as Toyota's. It would have been nice if CNN made a statement about how many experts it consulted and whether their views were conflicting. Did every expert consulted by CNN think the electronic interefence theory was more probable than the mechanical pedal problem theory? Or did CNN cherry pick and only show those experts who had that view, ignoring those who thought Toyota had things right?

It's hard to know whom to believe, but I can't say for sure that I would trust CNN more than Toyota. CNN could have helped its own credibility with some added perspective on the trust issue.

After the Fall

2010-02-09T10:29:00.003-05:00

A snow day is fun, a snow week is a pain in the ass. Snowmaggedon very considerately came on the weekend, which minimized disruption, but with that much snow it wasn't surprising that most workplaces (including GW and the federal government) were closed on Monday. It was enjoyable to get an extra day to putter about and work at home in a relaxed way.

But now it's Tuesday, and schools and the government are still closed (a lot of private workplaces seem to be open), and with another big storm arriving today, there's no telling when we might be able to hold classes again. We've endured about two feet already, and the forecast calls for another ten to twenty inches today and tomorrow. Is there no limit to this? Doesn't the snow get used up?

One day of canceled classes can be made up without much trouble, but a week of canceled classes, which now seems all too likely, is a real disruption in the schedule. We have a couple of snow days built into the schedule, but not five. I don't think we can cancel spring break, and the exam schedule is pretty sacred. There'll be a lot of doubling up and we might have to eliminate reading period. It's going to be tough on both students and faculty.

What would be interesting would be if we got, say, four inches of snow. Around here, four inches is usually regarded as a major calamity, something that brings life to a standstill. But have Snowpocalypse and Snowmaggedon toughened up even the weather wimps of DC? Would we shrug off four inches and get ourselves to work? Unfortunately it looks like we won't find out. Snoverkill is on the way.

Snow Economics

2010-02-07T07:35:00.002-05:00

NPR had a weather economist on the other day. Here's a bit of weather economics for you: have you ever noticed that the first business to shut down in a snowstorm is your gym?

Economics explains why. Other businesses make money by staying open. They have an economic incentive to tough it out if they can.

But your gym? It's got your money already. Staying open just costs the gym money. I don't know if the gym actually saves on salaries by shutting down -- perhaps not -- but it must save on heat, electricity, and wear and tear on the machines by keeping the place shuttered.

I know my gym is the wimpiest business in the neighborhood. Sure, they say it's a matter of safety when they close early in the snow. But I'm guessing there's a big dose of economics in there too.

What is it?

2010-02-06T08:13:00.003-05:00

As we conetemplate the 12 to 21 inches of the stuff under which we are buried, there's only one thing on the minds of Washingtonians this morning: snow. But what exactly is snow?

According to unimpeachable sources, snow is just water. That's right, it's made up of "crystals of frozen water, i.e., ice."

It seems a little incredible at first. Sure, water can take on surprisingly different forms -- it can be a gas, a liquid, or a solid. But snow? Snow sure doesn't look like water.

Still, so many sources agree on this point, that I guess I believe it. Probably you do too. But all the same, join me for this little thought experiment:

If I gave you a cup of water and said, "turn this into steam," you'd know what to do.

If I gave you a cup of water and said, "turn this into ice," you'd know what to do.

Now suppose I gave you a cup of water and said, "turn this into snow." Would you even know how to start?

I don't know about you, but asking me to turn water into snow would be like asking me to turn straw into gold. I could fool around with water all day and you'd never see a single snowflake.

A couple feet of the stuff is pretty. But it sure doesn't look like water to me.

Hold On

2010-02-05T13:11:00.002-05:00

If reports are to be believed, Senator Richard Shelby has placed holds on all of President Obama's currently pending nominees, apparently because he didn't get a couple of earmarks for Alabama.

This kind of behavior is an example of how absurd things are getting in the Senate. It's bad enough that any 41 Senators can block the other 59 from doing just about anything. But a hold allows one Senator to wreak havoc with the Senate's schedule.

One might ask, why doesn't the majority leader simply stop allowing holds? Unlike the 41-Senator filibuster, which at least has a firm basis in the Senate's rules, the "hold" practice is an informal custom. Originally, holds were designed as a courtesy to Senators who had a scheduling conflict with an important vote, but they've metastasized into a constant stalling tactic. So why not stop recognizing them?

The problem is that the Senate does almost everything by unanimous consent. A hold, while not formally recognized in the rules, amounts to a threat to conduct a filibuster, which is recognized. It particularly amounts to a threat not to consent to a unanimous consent request.

So when the majority leader seeks unanimous consent that the Senate vote on a nomination at a particular time, the "holder" can object. Then the majority leader would have to move that the Senate take up the nomination, and that motion could be filibustered. And while the majority leader might easily have the votes to invoke cloture, cloture doesn't result in a vote; it just starts the clock on thirty hours of debate. Then there's a vote. And that's just the vote on the motion to take up the matter. Then another cloture vote is needed to bring debate to a close, following which debate takes another thirty hours. So the "holder" is threatening that if he or she is not appeased, the matter will eat up nearly a whole week of precious Senate calendar time.

So as usual, what is really needed is a fundamental reform of the Senate's rules. The House of Representatives is famous for allowing individual members and the minority party as a whole too little influence on what happens. But the Senate allows too much. One member can tie the whole body up in knots. The result is too much appeasement of minority interests.

Snowmaggedon

2010-02-05T08:26:00.002-05:00

D.C. is bracing for a potentially "historic" snowstorm, so last night I thought I'd pop over to the grocery store and pick up food for a couple of days.

So did everybody else. I tried my little neighborhood store, and it was picked clean. No milk, no beef, no chicken. So, I went to the big store, and it was practically the same thing! And lines of 10 or 15 people at every register, each with a cart filled to overflowing. So I tried again this morning. A bit better: but no quarts of milk, no half gallons. I had to pick up a gallon -- and there weren't many of those left. There was some beef and chicken. I took what I could find and counted myself lucky.

Washington can barely deal with two inches of snow, and we're expecting up to two feet. People are skittish like its Y2K all over again.

More Smart People Being Stupid

2010-02-03T09:19:00.003-05:00

The Consumer Product Safety Commission is thinking of fining Toyota for reacting too slowly to complaints of accelerator problems, but the maximum fine it can impose is $15 million. Former administrator Joan Claybrook would like to see that amount increased to $100 million.

Even that amount would hardly make a difference. Toyota is likely to spend about $900 million on its recall, its lost sales are costing it $155 million per week, and the damage to the company's reputation will surely add billions more over the coming years. If those kinds of numbers weren't already a sufficient incentive to avoid this mess, I don't think the prospect of an extra $100 million fine would really have made much difference, although it would always be nice for the U.S. government to get the revenue.

The problem is cultural. I'm sure Toyota saved a few million here and there by not being careful enough in its design and testing phases to avoid the problem it's now having, and no one listened to the people who said wait a minute, we're saving a million now but we're running a risk that could cost us billions. It's the same business spirit that encouraged making money through mortgage-backed securities, which looked great until the risks almost destroyed the entire economy, or that encourages newspapers to rush stories into print to make a quick splash without sufficiently considering the tremendous harm that can be caused by reputational damage, or that encourages development that makes money now by not caring about wetlands erosion but risks disasters like Katrina.

There's a place for bold risk-taking in the world of business, but there's also a place for caution. The smart people who run these companies need to create incentives that don't just measure how much money the company made this year, but how much risk it took on too.

Weather Wimps

2010-02-02T12:06:00.002-05:00

Schools are closed in several DC area counties today because of snow.

Today is Tuesday. It snowed on Saturday. That was more than two full days ago.

Where I come from, if it stopped snowing in the late hours of Sunday (say, at 11:30 pm Sunday), there would be some head-shaking if schools were closed on Monday. If it stopped snowing at 11:30 pm Saturday and schools were closed on Monday, there would be outrage. And if it stopped snowing at 11:30 pm Saturday and schools were still closed on Tuesday, people would get fired.

Question Time

2010-01-30T08:13:00.005-05:00

How'd you like that debate between President Obama and House Republicans? Pretty cool, huh? Republicans members of the House of Representatives got to ask any question they wanted, straight to the President of the United States, and the President answered. And the whole thing was televised. That was the unprecedented part. Presidents have gone to meetings of the opposition party and answered questions before, but ususually the Q&A session is secret. This time the whole country got to see a lively debate between the President and opposition party members. Here's some video.

Well, if you liked that, how would you like it if we had a similar session once a week? That's right, how about the President of the United States, appearing before the House of Representatives, or maybe before the Senate, once a week, with opposition members asking him questions. And why limit it to opposition members? Let's allow any member to ask the President a question, with special attention given to opposition leaders, but bringing in rank-and-file members on both sides. And the whole thing on television. The public would get a lively, weekly debate on the issues of the day.

Well, if we lived in Britain, that's exactly what we would have. Every Wednesday at noon, the prime minister appears before the House of Commons and takes whatever questions about public issues that any member of Parliament cares to ask. If the Prime Minister is out of town, the Leader of the House (equivalent to our Majority Leader) answers instead.

The Speaker of the House (who, unlike the Speaker of our House of Representatives, is a neutral, non-partisan official) moderates the debate. The Speaker calls first on a member chosen at random, then, if the first member was from the opposition, on a random member of the majority, and then on the leader of the opposition -- at which point all the opposition members chime in, "Hear, hear." The leader of the opposition gets to ask about five or six questions, then another random majority party member gets a turn, and then the leader of the largest third party (currently the Liberal Democrats) gets a couple of questions, and then it's just random "backbenchers," as rank-and-file members are called in Britain, for the remainder of the time. The Prime Minister has to answer -- well at least he has to say something, he doesn't always answer the question asked. Throughout, members chime in with cheers, hoots, catcalls, and other outbursts, which the Speaker has to repress from time to time, with his signature cry of "Order, order."

To see the weekly show, go to the House's website's video section, choose any Wednesday, and go to about 30 minutes in. You'll see a lively debate, and you'll also see how much better Parliament's website's video is than the C-SPAN archive. C-SPAN's archive is appallingly difficult to watch. With the House of Commons, you have easy access to the whole day's proceedings in one click.

News Flash -- It's Illegal to Kill People

2010-01-29T12:55:00.007-05:00

After a mere 37 minutes of deliberation, a jury convicted Scott Roeder first-degree murder for killing George R. Tiller.

The defendant had been permitted to testify that, in his mind, the killing was justified because the victim was a doctor who performed abortions. Ultimately, however, the judge didn't give the jury the option of finding the defendant guilty of voluntary manslaughter.

Thank you, jury. Abortion is controversial, but if we allowed people to get out of murder charges on the ground that they really thought it would be a public good to kill the victim, society would completely break down. It can't be a defense to murder that you didn't like the lawful activities the victim was engaged in.

Festina Lente

2010-01-27T09:55:00.003-05:00

Who'll be the first to decry jumping to hasty conclusions about the arrest of James O'Keefe, the young videojournalist whose undercover videos posed such problems for ACORN last year, for allegedly plotting to do something (it's not clear exactly what) to the telephones in the office of Senator Mary Landrieu?

How about Scott W. Johnson, a co-founder of the conservative blog, "Power Line"? In response to the arrest, he said, "It sounds like it was another kind of journalism project, maybe a misguided one — I'm open minded — but there's so little information it's impossible to say anything intelligent about it."

An excellent attitude. I'm sure all of O'Keefe's defenders took the same open minded, cautious approach when O'Keefe's ACORN videos first broke. One wouldn't want to jump to any hasty conclusions. Festina lente -- an excellent rule for all pundits on either side of a debate to follow.

Fantasy Prisoners

2010-01-26T16:19:00.003-05:00

The Seventh Circuit has upheld a prison's decision to ban the game "Dungeons and Dragons" among inmates. The prison adopted a rule against the game because it "promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”

Sheesh. As Ilya Somin points out over at the Volokh Conspiracy, The Count of Monte Cristo could give rise to escape behaviors. Football encourages organized, competitive hostility.

Without necessarily disagreeing with the court's decision that there is no constitutional right to play Dungeons and Dragons in prison, I would have to say that this prison rule seems over the top and also seems to be a continuation of standard, unverified cliches about the dangers of this form of game. I haven't played D&D for decades, but I used to play when I was in high school and certainly my group never had any difficulties confusing the advisability of fantasy violence with that of real violence.

Of all things, the prison said it was concerned about D&D, not just because of the fantasy violence involved, but because the game involves cooperative behavior: the prison was concerned "about cooperative activity among inmates, particularly that carried out in an organized, hierarchical fashion." Such organized, cooperative activity can be the basis of forming a prison gang, the prison officials said.

My goodness, what if one of the prisoners organizes a book group and instructs the members on which book to read for the next meeting? Does the prison forbid that?

Maybe it does, but I doubt it.

I'll Take Half

2010-01-23T16:00:00.005-05:00

I guess I feel sorry for Conan O'Brien's losing his job hosting the Tonight Show -- it was a great gig, he really wanted it, and it can't be fun to be fired. I met Conan during college -- he was a year below me -- and he seemed like a great guy and very funny. And he ended his show with a very gracious speech thanking NBC for the opportunities it's given him over his 20 years there. So I have some sympathy for him.

Still, let's not forget that he's getting paid $32 million to do nothing. And he's free to earn whatever he can at any other job starting in September.

I can confidently say that I would do nothing for half that amount. In fact, probably less.

I am reminded of the time, a few years after I started teaching at GW, that our basketball coach left the school in the midst of scandals (it was reported that he had failed to notify the school of criminal charges against one of the players and that the players had made $1400 worth of phone calls using his son's long-distance code). Even though the school appeared to have good cause to fire the coach, GW announced that it would "honor" the remaining three years of his contract, which meant that it would pay him a reported $450,000 a year to do nothing. (And he wasn't barred from working elsewhere either.) I wanted to let the university know that, if they really needed someone to do nothing, I would do it for half.

(And by the way, this happened not long after our university's then-President made a big fuss about how the law school needed to teach students that improper actions have consequences. Yeah, the consequence is that you get paid to do nothing.)

Of course, Conan hasn't done anything bad, except get bad ratings. But the element of getting paid not to work is common to both stories.

So while I do feel bad for Conan, I don't feel all that bad. Getting paid tens of millions to do nothing is nice work, if you can get it.

Emphatic Justice Stevens

2010-01-21T10:46:00.004-05:00

I obviously haven't had time to read all 183 pages of today's landmark decision in Citizens United, but here's just a quick take on how important it is: Justice Stevens said, "Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions and join Part IVof its opinion, I emphatically dissent from its principal holding."

I added the italics, but even without them, Justice Stevens's statement is stunning. One thing I noticed long ago about Justice Stevens is that he always, always, always dissents "respectfully." For a long time I wondered whether he was saving himself up for the great case, the ultimate case, in which he would just dissent, and not respectfully dissent.

Then along came Bush v. Gore. Even in that case, where the majority opinion perhaps deserved less respect that in any other, Stevens's dissenting opinion concluded with "I respectfully dissent." So I kind of decided that he wasn't saving himself up for the ultimate case. He would always respectfully dissent.

But not today. Today Justice Stevens emphatically dissents. He thinks this case is worse than Bush v. Gore. Wow. It must be quite a case.

Chill a Little, Dudes

2010-01-21T09:12:00.003-05:00

Someone really needs to get the Supreme Court Justices to tone down their rhetoric a little. Snarky sniping has become the norm in politics, but one might hope for judges to be a bit more bland and respectful.

On Tuesday, the Supreme Court vacated and remanded an Eleventh Circuit decision that, all nine Justices agreed, including a holding that was erroneous in light of a subsequently decided Supreme Court case. But they disagreed (5-4, naturally) as to whether vacatur was necessary, inasmuch as four of them believed that the Eleventh Circuit's opinion contained an alternative holding that would have supported the judgment notwithstanding the erroneous holding. The majority thought that the alternative holding at least might have been infected by the erroneous holding and decided that the better option was to remand to the Eleventh Circuit to make sure.

Oh, and by the way, the Eleventh Circuit's decision affirmed a death sentence.

Look, as faithful readers know, I don't have the strongest feelings either way on the death penalty. But I don't think I'm going too far out on a limb to suggest that where a man's life is at stake, the judicial system should act carefully. If there's even some possibility that the ultimate judgment is erroneous, it won't kill anyone (one might say) to take a careful look at the matter before executing the defendant.

So I can't understand why the dissenters feel the need to complain about the Court's "flabby standard," to say that "the Court outdoes itself," and to create snarky and degrading acronyms for the Court's action ("the SRIE, Summary Remand for Inconsequential Error—or, as the Court would have it, the SRTAEH, Summary Remand to Think About an Evidentiary Hearing").

This kind of rhetoric doesn't serve anybody well. If you disagree, go ahead and dissent, but at least do so respectfully. The Court is asking the Eleventh Circuit to take another look at the case before the defendant is executed. Let's not rush him to his death with jeers and bad jokes.

The Future of Health Care Reform

2010-01-20T09:13:00.003-05:00

Does Scott Brown's victory in Massachusetts kill health care reform? Not necessarily. First of all, as I pointed out yesterday, the Democrats still have a 60-vote majority in the Senate until the election results are certified, which will probably take at least ten days. So they could pass the bill if they moved fast enough.

But there's another, even more important way forward: make the bill so popular that even some Republicans have to vote for it. President Obama can do that with the kind of rhetorical and leadership skills he displayed so well during the election campaign.

If I had President Obama's ear, here's what I would say:

Under President Bush, the Republicans never had more than 55 seats in the Senate and Bush got pretty much everything he wanted. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us! And that was when the Republicans had just 49 seats 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. Every day, President Bush, and Donald Rumsfeld, and Condaleeza Rice, and Paul Wolfowitz were out there telling us that it was essential that we invade Iraq. Their case was totally weak, but they talked it up so much that the Senate was compelled to vote for it.

So why not try the same strategy? Talk about health care every day. You, and Kathleen Sebelius (the Secretary of HHS), and Regina M. Benjamin (the Surgeon General), and other appropriate senior officials should explain every day why America needs health care reform.

You certainly have a stronger case than Bush did for the Iraq war. You also have the rhetorical gifts to make that case. You can make the public demand health care reform. And then the Senate will have to vote for it.

Just remember: Yes we can!

Top Story

2010-01-19T08:50:00.003-05:00

Today's biggest news? It's the weather in Massachusetts, and it's not good: rain, snow, and cold.

That's bad news for Martha Coakley, and it's just the latest in a string of bad, bad, bad news she's been getting. She's not out of the race, but she needs a big turnout to win, and bad weather depresses turnout. The unbelievable may happen today: a Republican taking over Ted Kennedy's Senate seat.

Does that mean the end of the health care bill? Not exactly. The winner of today's election can't take his or her seat until the election is certified, which should take at least ten days or so. In the meanwhile, Senator Kirk would continue to occupy the seat and vote in the Senate. There's nothing wrong with that; lame ducks always vote in a post-election period.

So even if Brown wins, Democrats would continue to have 60 votes in the Senate for a precious few days, and if they could get the health care bill through during that period, it's a law like any other. But boy, the Republicans would stage the filibuster to end all filibusters. The clock would really mean something.

Would it be dastardly and underhanded for the Democrats to push the health care bill through as fast as possible while Kirk is still in office? I would say no. First, as noted above, lame ducks get to vote until their term is over; that always happens. Second, remember that Democrats have a big majority in the Senate, even if Brown wins! They just wouldn't have enough votes to defeat a filibuster on their own. But as I've observed repeatedly, the filibuster is an absurd impediment to democracy anyway. It's hard for me to see what's so underhanded about saying, "we got a bill through the properly apportioned House of Representatives, and now we'd like to move it through the Senate, where we legitimately control at least 59% of the vote."

It sounds like democracy to me.

Network Kerfuffle

2010-01-17T08:37:00.002-05:00

Of all the innumerable and embarrassingly public details of the infighting at NBC over its late-night lineup, the most curious to me is that Leno's poor ratings at 10 p.m. are unnaceptable to affiliates because they cause affiliates to lose viewers for their 11:00 news shows.

Are Americans really so lazy, are they such sorry slobs, that they choose their 11:00 local news based on which network had a better show on at 10:00? Can they not conjure up enough energy to click their remote controls when the news comes on? Presumably this means that most Americans will watch one local news show on Tuesday and a different one on Thursday, if they like different network fare on the different nights. Do they not develop preferences in news shows too?

I guess local news shows are just a commodity, like wheat or ibuprofen -- the product must be so standardized that it doesn't matter whom you buy it from. Which raises the even bigger question, why watch the local news anyway? Do you really need to know about every local crime and fire?

All You Need Is . . .

2010-01-16T10:11:00.003-05:00

As faithful readers know, we get to relax from serious topics on weekends.

Blackberry commercials are generally pretty annoying, and it's somewhat dispiriting to see the Beatles' music used to hawk cell phones, but I will say that their latest commercials at least remind me what a great song "All You Need Is Love" is.

And here's the thing -- it all comes down to one note. It's the note on "need" the third time "all you need is love" comes around. The first two times the whole phrase is a monotone, but then the third time, it's different: "Need" is a half-step higher. Just half a step, but what a difference it makes, as a leading tone into the whole step up on "love." And it's a nice cover too, apparently by someone named Grayson Matthews.

I'm sticking with my Treo, but take a listen and appreciate the beauty of leading tones.

Another Dreary 5-4

2010-01-15T13:15:00.009-05:00

A snappy little per curiam from the Supreme Court this week on the question of whether to stay the decision of a district court in California to broadcast the current trial on the question of whether the state's ban on same-sex marriage is unconstitutional.

Now, look. You may or may not like same-sex marriage. You may or may not like broadcasting trials. But that isn't even what the Court's decision is about. The question was whether the district court followed proper procedures in amending its rules, which previously prohibited broadcast of trials, to allow the broadcast of this trial as part of a "pilot program."

But before reading further, see if you can guess which five Justices thought it hadn't and which four thought the change was OK?

The question of whether federal trials and other federal judicial proceedings should be broadcast has gotten a fair bit of attention over the last few years. The national Judicial Conference (a body that represents the whole federal judiciary) has been steadfastly against it. Congress has been considering some bills to permit it, but they haven't gotten very far yet. At the moment, broadcast is generally banned but it's open to federal courts to change that by rule.

But there are procedures that have to be followed to change federal court rules. In particular, the Rules Enabling Act requires a court that wants to make or change a rule to give "appropriate public notice and an opportunity for comment," unless there is an "immediate need" to make the rule change without such notice and opportunity.

Did the district court in this case do that? You decide. As early as September 25 of last year, the district court informed the parties that there was interest in having the trial broadcast. One month later, the court of appeals's chief judge appointed a committee to consider changing court rules to permit such broadcast. On December 17, the Ninth Circuit's Judicial Council announced that it had approved a limited pilot program to test broadcasting of judicial proceedings.

On December 23, the district court announced that it had changed its local rule, which had prohibited broadcasts, to permit broadcasts in connection with the pilot program. But then on December 31, the district court withdrew that announcement and instead announced that it was proposing a revision of its local rule, and that public comment was solicited, with a deadline of January 8. Then on January 4, 2010, the district court again changed the announcement, to state that it had changed its local rule, effective December 22, based on the "immediate need" to make the rule change.

Well. As the Supreme Court ruled this week, it sure seems like the district court didn't know what it was doing. Speaking as an administrative law professor, I would say that this sounds rather like an agency that discovered only at the last minute that it was subject to procedural requirements and that scrambled around to try to justify procedurally what it had already decided to do. The Supreme Court suggested -- rightly, in my opinion -- that an agency that tried to pull this kind of stuff would get slammed by a reviewing court.

The district court proposed a public comment period that lasted a whopping five business days -- and it didn't even hold the comment period open for that long before acting. Most agency public comment periods last at least 30 days. Also, when agencies claim an emergency need to avoid a public comment requirement, it's usually for something really important, not something like, "we have a particular case that we'd like to get into the new program." I mean, let's face it, federal trials have been not broadcast for hundreds of years; it won't kill anyone it this particular trial isn't broadcast and the new pilot program only takes effect after it's over.

So it seems to me that the district court was engaged in absurd procedural shenanigans and it rightly deserved to get smacked.

Now, I recognize that there are arguments the other way. As the dissenting opinion in the Supreme Court pointed out, the parties to the particular trial involved had sufficient notice (3 months or so) of the possibility of broadcast. There was some period of public comment -- and apparently there was a huge response; over 130,000 comments were received, almost all favorable. In addition, the Supreme Court isn't supposed to act on just anything that gets filed with it; its jurisdiction is discretionary and it's supposed to reserve its time for really important matters, which this isn't. So there's a good argument that the Court should have declined to act.

So I think I agree with the Court's action, but it's not entirely one-sided.

But here's the thing: the vote was 5-4, and it was the five conservatives against the four liberals, as usual.

Sheesh! Does everything have to be politicized and ideologized? Just because the hot-button issue of same-sex marriage is involved, does every small procedural detail of the trial have to be split along liberal/conservative lines? Couldn't just one of the liberals have decided that, as an administrative law matter, it's wrong for government bodies to ignore procedural constraints because they're in a hurry on a particular case? Couldn't just one of the conservatives have decided to follow the Supreme Court's usual practice of not bothering with piddling matters?

Sigh. I find it increasingly depressing that no one seems to be able to break out of their ideological cocoons. This case was primarily a procedural issue. But everyone's so focused on the hot-button background that no one can (one might say) think straight.

Ed Brown, Down for Good

2010-01-14T15:34:00.008-05:00

And speaking of tax protestors, I know no one else cares about this, but I have to note that Ed Brown, possibly the champion chump of all the tax protestors, has finally been sentenced for the weapons and other offenses he committed while holing up in his fortress-like home for months to avoid being taken to jail after his conviction for his actual tax offenses.

Ed Brown and his wife Elaine, faithful readers will recall, were charged with tax offenses after failing to file returns for several years on the usual absurd grounds (no law requires payment of taxes), stopped attendning their trial halfway through, were convicted, and were sentenced to 63 months in prison. To avoid arrest, they barricaded themselves in their New Hampshire home, replete with weapons, explosives, and nonperishable food. The standoff lasted for months, during which they repeatedly threatened a violent end if the Marhsals moved against them. But at last, in October 2007, the Marshals took them peacefully by sneaking in under the guise of being supporters.

If only Ed and Elaine had surrendered peacefully when sentenced, they would already be more than halfway done serving their time. But their armed resistance got them charged with numerous weapons and other offenses, and they were found guilty again. Earlier this week, Ed was sentenced. After blaming his problems on "Freemasons, Zionists, Jesuits, Knights Templar, the Fraternal Order of Police, [and] the Moose Lodge" and treating the court to statements such as "I am the government," Ed decided he'd rather be back in his cell when the judge pronounced sentence. So he didn't hear Judge Singal setence him to 37 years in prison -- which doesn't even start until he's done with his current 63 months.

Sad case, really. The court psychiatrist concluded that Ed did not suffer from a mental illness, and I presume there's some legalistic sense in which that is true, but to me, someone who believes the court is a fiction, that the Jesuits run everything, and that there's no law requiring payment of income tax, certainly has a geranium in the cranium. The man is not normal, and it's sad that his mental issues (even if they don't amount to a recognized mental illness) have led him to engage in so much self-destructive behavior that he will almost certainly now die in prison.

Not a Bad Day's Work

2010-01-12T09:00:00.002-05:00

The Federal Reserve trades government bonds -- and, more recently, other things -- primarily with a view to implementing policy. For example, it buys government bonds when it wants to expand the money supply and it sells them when it wants to contract the money supply. Its main goal is not to make a profit. But it acts with such skill that it usually does make a profit, and it's such a big operation that the profit is usually in the billions.

What happens to that profit? It goes back to the U.S. Treasury. And as the Post reports today, this year's profit is especially impressive: $45 billion, the highest amount in the bank's 96-year history.

Of course, part of the reason is that the Fed has been investing in riskier things over the last year. It's not just into humdrum U.S. government bonds anymore. So as would be true for any investor, higher risk can produce a better return. But it's still a higher risk, which might hurt the Fed (and therefore us) in future years. Still, a $45 billion return right now is pretty nice -- beats a sharp stick in the eye, as my father likes to say.

But why is Law Prof on the Loose caring about this? Faithful readers, this post is not really for you, but for that other, stranger part of my fan base, tax protestors. As you know, I am oddly fascinated with these unusual people who deny that any law actually requires payment of income tax. And recently, I have noticed that tax denial is increasingly linked to another set of strange beliefs, focused on the Federal Reserve. An increasing percentage of tax protestors also believe that there is something truly evil about the Fed -- that it's a cabal of bankers who secretly run our country (and the whole world, too) and are calling all the shots. And it's somehow responsible for the income tax -- income tax and the Fed were created at about the same time, and tax protestors somehow think that you couldn't have one without the other.

I'm not really expert on the Fed and I'm not in a position to say whether, on the whole, it is a good or a bad institution. But the tax deniers are into some truly ridiculous claims about it, the main one being that 100% of income tax revenues are used to pay interest on the national debt and therefore just go straight to the Fed. That is totally not true, as can be determined by just looking up the figures (unfortunately, looking things up is a skill many tax protestors lack): last time I checked, about 20% of income tax revenues got eaten up by debt payment, not 100% (it's probably more now, given how much extra borrowing the government is doing lately, but still a lot less than 100%), and besides, the Fed only owns a small percentage of U.S. debt anyway; most of it is in private hands.

Tax protestors also believe that the Fed is just a privately owned bank, that it charges interest on all U.S. currency, and that it is never audited. These myths are out of my realm, but a good web page on them can be found here.

Anyway, today's news story is primarily for the tax protestors. That Fed that you hate so much? It just handed $45 billion over to the U.S. Treasury. While Ben Bernanke, its CEO, pulled down a whopping salary of $199,000. Not a bad day's work.

Correcting my Mistakes

2010-01-11T10:02:00.004-05:00

Some lawyer has an op-ed in the NY Times today arguing against filibusters. He makes a couple of silly arguments -- such as that the Supreme Court would declare filibusters unconstitutional, when in fact the Court wouldn't touch the issue with a 10-foot gavel -- but he makes the correct point that filibusters are an undemocratic impediment to lawmaking and have gotten worse in recent years. Of course I've been making the same point for a long time.

But I have to correct one thing I said previously. I suggested that Harry Reid should take his 60-vote supermajority and use it to change the 60-vote filibuster rule. I correctly pointed out that the rule is not in the Constitution, but is just Rule XXII(2) of the Senate rules and could be changed at any time by majority vote -- if debate on the motion to change the rule could be brought to a close, that is.

But here's what I got wrong: I said that the necessary vote to close debate on the rule change would be 60 votes, as with any other cloture motion. I should have read rule XXII more carefully. Normally, the rule requires "three-fifths of the Senators duly chosen and sworn," which in a fully staffed Senate would be 60, to end debate on any motion. But there is a special exception for motions to change the Senate rules. To end debate on those requires "two-thirds of the Senators present and voting." So if everyone shows up to vote, that would require 67 votes, not 60.

So the filibuster rule is extra specially entrenched and will be extremely difficult to change. It seems unlikely that either party would ever agree to give it up while they are in the minority.

The only plausible proposal I have seen recently is that the Senate might agree now to end the filibuster at some distant time -- say 8 or 10 years down the road -- so that no one could tell, during the debate on the proposal, which side would benefit from it. That way, we could all focus on the fact that allowing the filibuster is bad public policy, without worrying so much about who benefits from this bad policy right now.

But let's get started! If we can only eliminate filibusters a decade from the time we decide to do so, we want that time to be right away.