Wednesday, March 31, 2010

The Real Government Takeover

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.

Monday, March 29, 2010

Socialist Baby-Killers

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.

Sunday, March 28, 2010

Internet Explorer Has Stopped Working

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.

Friday, March 26, 2010

Majority Rule -- What a Concept

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.

Thursday, March 25, 2010

Do States Have Standing?

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.

Wednesday, March 24, 2010

Health Care Mandate

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.

Tuesday, March 23, 2010

Response on the Census

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.

Sunday, March 21, 2010

And About Those Census Kooks . . .

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.

Saturday, March 20, 2010

Deem and Pass

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.

Friday, March 19, 2010

More on Health Care

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.

Thursday, March 18, 2010

Federalism in the News

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

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.

Wednesday, March 17, 2010

How Stupid Are We?

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.

Tuesday, March 16, 2010

Heard It Here First

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.

Sunday, March 14, 2010

Happy Pi Day

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

Friday, March 12, 2010

Who Signed This Complaint?

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.

Thursday, March 11, 2010

Poor Bubby

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.

Tuesday, March 9, 2010

Fishy Story

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?

Monday, March 8, 2010

Protection Racket

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.

Thursday, March 4, 2010

Oh No, Majority Rule!

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.

Tuesday, March 2, 2010

Bunning's Barrings

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.

Monday, March 1, 2010

Peer Review

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.