The Volokh Conspiracy

Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained.  This prediction has been amply confirmed.  The most recent example is the implementation of an explicit profiling program for airline passengers.  The ACLU aside, there has not been much criticism of this initiative.  (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)

The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.  Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.  There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.

This development seriously weakens some common arguments heard over the last years.  The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain.  If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so.  But the theory was never a very good one.  If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago.  Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits.  But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.

The Al-Bihani case is another signpost on the road.  The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes.  But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches.  The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war.  If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds.  Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.

Slate has this interesting analysis of the question.

I was asked to note an AALS panel, put together by the AALS Section on Women in Legal Education, and I’m happy to do so:

Saturday, Jan. 9, 8:30–10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender– or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?

Panelists:
Deborah L. Rhode, Stanford Law School
Jack M. Balkin, Yale Law School
Brad Wendel, Cornell University School of Law
Lyrissa Lidsky, University of Florida, Levin College of Law
Danielle Citron, University of Maryland School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law, Tulane Law School

But I should also express my worries about the proposals that the panel appears to be aimed at contemplating.

If the panel were just planned to discuss the possibility that schools and state bars consider criminal and constitutionally unprotected conduct by students — such as making threats — that might be one thing. But the reference to “outrageous gender– or race-specific comments” suggests that the proposals would likely go considerably further.

That reference also suggests that we aren’t even talking about a general civility code, equally applicable to al outrageously rude insults. There are many familiar problems with such general codes — but the “outrageous gender– or race-specific comments” focus suggests that this code is aimed at suppressing offensive viewpoints, and not just uncivil ways of expressing all viewpoints. The rationale for that can’t just be that rude law students make rude lawyers, who might browbeat witnesses, make life hard for litigants, opposing counsel, and judges, and so on. (That rationale would itself be insufficient to justify denying someone a license to practice law based on otherwise constitutionally protected speech, but I set that aside for now.) The rationale must be that people who “outrageous[ly]” express racist or sexist views are unfit to be lawyers, presumably because they’ll act on those views in the future.

Once accepted, this rationale would be very hard to cabin. Obviously it would be hard to resist extending it to “outrageous sexual-orientation-specific comments,” or comments that express “outrageous” views criticizing Islam. Equally obviously it would quickly apply to all speech, on websites or otherwise. And of course who would be the judge of when the expression of an opinion — whether about typical students, about students who have injected themselves into public debates, about law professors, or even about a race, sex, sexual orientation, or religion more broadly — becomes “outrageous”? Who decides what is legitimate criticism and what is “smearing”? Who decides what constitutes “harassment” (perhaps under the now-familiar but still extremely vague and broad “severe or pervasive enough to create a hostile, abusive, or offensive educational environment based on race, religion, sexual orientation, etc.” standard)? Why, disciplinary committees in law schools staffed by law professors, plus perhaps disciplinary committees in state bars.

Many law students (not all, but very many) are already widely known to be very cautious about expressing views that they think the majority of their classmates, or even a vocal minority, may find offensive. The threat of social ostracism and subtle but career-jeopardizing retaliation by professors and even classmates, who will soon become potential colleagues and employers, is quite powerful. (Some such threat of retaliation through social pressure may even be good, though it always has potential costs to open discussion.) But when a few comments — whether deliberate or said in the heat of debate — can lead to the denial of a bar card (after you’ve taken out $150,000+ in student loans), how many students would feel safe discussing, say, the possible pluses of racial or religious profiling, or arguments that homosexuality is immoral, or the possibility of mental differences between the sexes or between races, or the alleged evils of Islam, or the question whether many students or professors of particular races lack sufficient qualifications and were instead chosen based on affirmative action? How many would feel sure, with their professional futures on the line, that of course no hostile low-profile university committee would treat the comments as “outrageous,” “smearing,” or “harass[ing]”?

I’m sure that most backers of these restrictions would stress that of course they’re not trying to shut down substantive debate, only incivility. But once viewpoint-based restrictions are accepted, once speech can be suppressed because it’s “outrageous” or “smearing,” it’s pretty hard to have much confidence that substantive (but to some “outrageous”) discussion of ideas will remain untouched; and even if actual punishments for such speech are rare, the risk of punishment may powerfully deter the substantive debate as well as the nonsubstantive smears (of which I agree there is plenty). That has certainly been the experience with “civility codes” at university campuses, and governmentally coerced restrictions on “harassment” in workplaces. It would be hard to avoid the same effect in attempts to exclude lawyers from the bar on the grounds that their speech bespeaks lack of “character and fitness.”

Now the panel announcement, like most such panel announcements, doesn’t lay a proposal on the table; I can only speculate, based on the questions in the announcement, what speech restrictions some people might propose. (In my experience even the panel discussions themselves often don’t focus on specific proposals, but rather discuss the issues more generally.) But I think the questions can indeed give rise to informed speculation about what some people are discussing. So I thought I’d express my views on the subject, recognizing that we’d have to have a more focused debate should there be some more tangible proposal for denying bar membership to people who, while students, have made “outrageous gender– or race-specific comments (often about other students or faculty members).”

Finally, I of course acknowledge that the Supreme Court has indeed upheld some restrictions on lawyers that aren’t applicable to ordinary citizens, on the rationale that lawyers are officers of the court. (See, for instance, Gentile v. State Bar of Nevada.) But what’s being discussed here is not a restriction on what lawyers can say while they’re representing clients, or what they can say in court. It’s not a greater level of tolerance for restrictions on false statement of fact when they are made by lawyers. (Some courts impose a negligence standard for false factual statements by lawyers about judges or court proceedings, rather than a knowledge/recklessness standard.) It’s not even a requirement that a would-be lawyer take an oath to support the Constitution, a requirement that the Court upheld only because it had been interpreted “extremely narrow[ly] and [in a manner] fully cognizant of protected constitutional freedoms,” basically just as an oath that one will support the Constitution (while of course being perfectly free to advocate that it be changed). What’s being discussed here is something that would affect a far broader range of commentary by would-be lawyers, whether online, on the university campus, or elsewhere.

(A note to commenters: While I don’t support the government’s denying people professional licenses because of those people’s speech — except when it falls into some of the usual narrow categories of unprotected speech — or universities’ disciplining students based on such speech, I not only support but enthusiastically practice denial of access to our blog to people who say things that are vulgar or pointlessly rude or insulting. I trust that the underlying distinction is obvious to our readers. So please keep the comments substantive and polite; remember, it’s a big Internet, and if you want to be rude, you lose very little by being rude on your own blog rather than on ours.)

George Thomas is a terrific and unusually fair-minded professor of criminal procedure at Rutgers Law School in Newark, NJ. I noticed today that he has a forthcoming article that tries to get a sense of the original public understanding of the Privileges or Immunities clause based on how the debates were covered in newspapers of the day: “Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1?” As Thomas admits up front, the essay is not the last word on the original public understanding. And I’m not enough of an expert in the history myself to know whether Thomas’s own judgement calls (which he states clearly) are correct. Nonetheless, I found the article helpful as a way to make sense of the conflicting historical claims. 

Advocates of “libertarian paternalism” cite experimental evidence showing that people often make irrational decisions, and argue that we need government regulation to guard against such problems. Economist Richard McKenzie challenges part of this rationale by citing experimental evidence showing that markets actually give people incentives to act more rationally than they would otherwise, thus undercutting claims of irrational behavior based primarily on surveys or experiments that don’t mimic the incentives and other conditions of real-world markets:

People, including economists, are imperfect decision makers because of their mental limitations. But this fact does not mean that markets fail. Indeed, markets do far more than induce improved allocation of resources, given wants and resources. Markets induce market participants to be more rational than they otherwise would be because they must pay a price for being irrational. Thus, markets allow—no, require—economists to assume that people are more rational than they are likely to be found to be in laboratory settings, absent meaningful information and incentives and absent market pressures. 

One underappreciated fact about the experimental and survey evidence relied on by advocates of the new paternalism is that it models voter decision-making far more closely than market decisions. Unlike market participants, voters have little or no incentive to either acquire information about the issues they decide, or to analyze the information they do have in an unbiased fashion. The same is true, to a lesser extent, of libertarian paternalist policies established by expert regulators insulated from democratic control (the “rule of experts” is often proposed as a means by which paternalist regulation can be enacted without being influenced by voter ignorance and irrationality). Such regulators may be more knowledgeable than voters. But unlike consumers, they do not have their own money at stake, and therefore don’t suffer any penalty if they make mistakes, and don’t have much incentive to combat any irrational biases they may have. 

By advocating increased government intervention in order to combat irrationality, the paternalists are arguing for a transfer of power to decision-making processes where irrationality is likely to be greater than it is in markets. The proposed cure actually exacerbates the disease.

As with some other aspects of the current debate over paternalism, the relationship between markets and rationality was well-described by F.A. Hayek. In Volume 3 of Law, Legislation, and Liberty, published over 30 years ago, he wrote:

Competition . . . is the method by which we have all been led to acquire much of the knowledge and skills we do possess. This is not understood by those who maintain that the argument for competition rests on the assumption of rational behavior of those who take part in it.... [R]ational behavior is not a premise of economic theory, though it is often presented as such. The basic contention of theory is rather that competition will make it necessary for people to act rationally in order to maintain themselves. It is based not on the assumption that most or all the participants in the market process are rational, but, on the contrary, on the assumption that it will in general be through competition that a few relatively more rational individuals will make it necessary for the rest to emulate them in order to prevail. In a society in which rational behavior confers an advantage on the individual, rational methods will progressively be developed and be spread by imitation. It is no use being more rational than the rest if one is not allowed to derive benefits from being so. 

Hayek’s point is particularly relevant to the comparison between voters and regulators on the one hand and market participants on the other. There is little benefit to being a well-informed, rational voter, since the chance of any one such voter affecting electoral outcomes is remote; if a government with better policies does somehow get elected, irrational voters who voted for the other side will benefit just as much as their better-informed compatriots. Voters are therefore almost a paradigmatic example of Hayek’s category of people for whom “[i]t is no use being more rational than the rest.” Government regulators — especially those insulated from political pressure — have some incentive to become well-informed, but very little reason to combat their cognitive biases.

Ultimately, there is little doubt that market participants are sometimes irrational. The problem is that government decision-makers are likely to be more so.

From a recent(ish) cert. petition:

(1) Was St. George Tucker correct when he told his William & Mary law students circa 1803 that all searches and seizures were considered general warrants and thus unconstitutional under the Fourth Amendment unless based upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the things to be seized, or, in the alternative, did this court correctly interpret the Fourth Amendment when it decided that businesses in a “pervasively regulated” industry may be searched without a warrant? (2) If St. George Tucker was correct, should this court overrule New York v. Burger?

An interesting decision from the Colorado Court of Appeal, Doumbouya v. County Court (Dec. 24, 2009):

Defendant ... was charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.

Defendant’s theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple’s infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings....Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported?

The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

The county court “vehemently disagree[d]” with defense counsel’s arguments. It observed that immigration, whether legal or illegal, is a “hot button topic” in today’s society. While noting that the question could elicit sympathy from a jury concerned that defendant might be deported and never see his son again, it also observed that defendant could have been prejudiced (and properly could have objected) had the prosecution injected immigration and deportation issues into the case.

When the court stated its intent to declare a mistrial, defense counsel objected and suggested any prejudice could be cured by a limiting instruction. The court disagreed, stating the “genie is out of the bottle.” It accordingly discharged the jury.

The question is whether there was “manifest necessity” for the mistrial, such that the defendant could be retried; if there was no manifest necessity, a retrial would violate the Double Jeopardy Clause. The court concludes that the questioning was proper, given the potential relevance of the questioning to the wife’s bias:

It would be constitutionally problematic to preclude relevant impeachment simply because immigration is a “hot button topic.” ... Defendant has shown that the cross-examination question was potentially relevant to impeaching the key prosecution witness. The theory of defense required a motive for defendant’s estranged wife to accuse him falsely. That motive, according to the defense, was a conviction that would lead to the wife’s being awarded custody of the couple’s son. If that is a proper theory to offer the jury -– as the trial court recognized by allowing cross-examination on the child custody dispute -– so too is the questioning regarding the wife’s belief that a conviction could lead to defendant’s deportation, which would effectively give wife full-time custody and thus inure even further to her benefit.

The mistrial was therefore not necessary (or even, I take it, proper), and reprosecution is thus forbidden: “It thus appears that defendant had a right, possibly of constitutional magnitude, to inquire into the wife’s understanding of the immigration consequences of a conviction. Nonetheless, we need not hold definitively that there were no possible grounds on which the trial court properly could have precluded the cross-examination. The fact that we have grave doubts as to the propriety of precluding the cross-examination means the prosecution has not carried its heavy burden ... of demonstrating the necessity for a mistrial.”

From the Chicago Daily Herald. Throwing a rock through a car window might not at first seem like much by way of self-defense, especially if the fear is that the car will run you over. But I take it that the court’s rationale — which seems sensible — must have been that showing signs of a willingness to retaliate might deter bullies, who might worry that the next rock will hit them directly, or might even just psychologically intimidate them:

A [17-year-old] girl who hurled a rock through a car window after its occupants repeatedly drove by yelling threats and homosexual slurs [at her 15-year-old] male companion] was found not guilty of a criminal damage to property charge Tuesday by a McHenry County judge who ruled she acted in self-defense....

“I believe she believed she was in danger of being hit by a car and her feeling was that (the harassment) wasn’t going to end,” [Judge Charles] Weech said while issuing his verdict....

Note this quote from the judge:

“Was there another way to handle it? You bet,” the judge added. “Two wrongs don’t make a right, and you made a wrong move by throwing the rock.”

The judge’s verdict — and self-defense law more broadly — does reflect that one wrong (the initial harassment, which is reasonably interpreted as threatening violence) may make the other wrong (throwing a brick) into a right. 

I’ve spoken before about the importance of not treating Islam as a monolith; and more broadly I’ve spoken in favor of treating Muslims in America much the same as other religious people — giving them the same religious freedom and religious accommodation rights, and not assuming their guilt from the guilt of other Muslims.

At the same time, it seems to me that in some situations, such individualized decisionmaking generally can’t happen, if we are to adequately protect ourselves. That’s one reason, for instance, why extra scrutiny of would-be visitors who are citizens of particular countries may be sensible. (I say “may” because it’s possible that it might be counterproductive or ineffective in ways that are beyond my expertise.) When we’re dealing with millions of would-be visitors each year, we need rough proxies in order to do initial screening. The fact that some country is home to a large movement with sympathy for anti-American violence — even if the movement is only a minority of the population, and its actually violent members are only a tiny minority of the whole movement — is such a proxy. And the fact that these are foreigners who are trying to visit the U.S. rather than U.S. citizens or residents makes such burdens more permissible (unfortunate as they may be for the many burdened people who are perfectly good folks).

My sense is that this is also one thing that the EU has to seriously consider in deciding on Turkey’s application to join the EU. Historically Turkey has been explicitly secularist, and to my knowledge some Turkish legal rules still discriminate against public religion in a way that would actually be seen as unconstitutional in the U.S. Also, my sense is that Turkey has not been a major source of jihadist violence.

At the same time, Turkey is overwhelmingly Muslim; and even if the great bulk of those Muslims are quite moderate, there’s always a substantial chance that the moderate strain of a religion will provide a breeding ground for more fundamentalist strains (at least among a substantial minority). We’ve seen such movements, though fortunately largely without violence, in Jewish and Christian communities in the West, as some people who were raised moderate become more fundamentalist. We’ve seen the same in other Muslim countries. The move from moderate strains of a religion to more fundamentalist ones and then back, over the generations, is a common theme in recent history. 

Adding nearly 75 million Turks to the EU population of 500 million, and giving them freedom of movement and employment throughout the EU, might lead to much more Islamic fundamentalism, including support for jihad, within the EU. Of course, it might also lead to more Europeanization of Turkey, and might undermine the growth of conservative or fundamentalism Islam there. It might even help spread moderate Islam throughout the Middle East. There are potential benefits as well as risks here, as elsewhere.

My point is simply that we sometimes have to make judgments about Islam generally, whether as currently practiced in a particular country or as we might worry that it might be practiced by many in a generation or so. I can’t see how it would be reasonable for Europeans to decide on Turkish membership in the EU without worrying in some measure about the risk that I describe.

Again, in most situations that involve our own citizens or residents, we should treat individual Muslims as individuals, and focus on each person’s actions rather than his theology. That’s the best American tradition, which has served us very well as to other religions, and is generally likely to serve us well as to Muslims, too — especially given that many Muslims are American citizens, and that American needs their help in many contexts (e.g., to serve the government as translators, to report jihadist and other criminal activity by other Muslims in their communities, and so on). But in foreign policy, broader judgments may often be necessary.

Another interesting crime-facilitating speech issue, which I discussed in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005):

An advocate for immigrant and civil rights has started using text messages to warn residents about crime sweeps by a high-profile Arizona sheriff.

Lydia Guzman, director of the nonprofit immigrant advocacy group Respect/Respeto, is the trunk of a sophisticated texting tree designed to alert thousands of people within minutes to the details of the sweeps, which critics contend are an excuse to round up illegal immigrants.

Guzman said the messages are part of an effort to protect Latinos and others from becoming victims of racial profiling by sheriff’s deputies....

So what’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming? (Assume that the lookout isn’t getting a share of the loot, but is just helping his friends avoid getting locked up.) Should it matter, as one expert who’s mentioned in the article suggests, whether Ms. Guzman’s real goal is preventing lawful arrest of illegal immigrants (as opposed to preventing racial profiling, assuming such profiling is unlawful)? I think there may indeed be a difference between such revelation of facts to the public and individualized communications to a small group of criminals, and I don’t think it should turn on jury inferences about the speaker’s true purpose; my article discusses the question at length. But in any event it’s helpful to think about what the difference might be.

Thanks to M. Williams for the pointer.

I’m delighted to report that we were the top vote-getter in the Legal Theory category of The 2009 ABA Journal Blawg 100. As you might gather, “Legal Theory” as a subcategory of law blogs means something different from “Legal Theory” as a subcategory of law professor blogs — I suppose we are indeed pretty theoretical compared to the average law blog, though not compared to (say) Prof. Lawrence Solum’s excellent Legal Theory Blog. Congratulations also to the runner-up, Paul Caron’s TaxProf Blog.

Thanks to Edward Hoffman for the pointer.

Law Professor Charles E. Rounds, Jr., has a sharply-worded call for a return to the basics in law teaching on the Pope Center’s website–more Socratic method and focus on traditional law school subjects.  Here’s a snippet but it is well-worth reading the whole thing:

Common law, of which agency and trust are critical components, is the bedrock upon which all our statutory and regulatory edifices are constructed. Unfortunately, the old required courses in the law—the courses necessary to master the law’s basic anatomy—have largely been crowded out by courses about the law. Almost every self-respecting law professor is now an amateur sociologist engaged in “ground-breaking” and “cutting-edge” scholarship that has a gender, race, or sexual identity hook. Those who are less sociologically inclined are likely preoccupied with some ultra-technical aspect of the Constitution, some piece of legislation, or a regulation. Many professors manage to cobble together entire courses around their preoccupations.

In short, professors mainly teach what they want to teach, which does not overlap much with what prospective lawyers need to know in order to sort out the rights, duties and obligations of parties. Even a negotiation, mediation, or arbitration requires a context, which the core curriculum was designed to supply. Instead, law students at great expense are getting little more than bad sociology.

Professional schools need to strike a balance between book-learning and real-world experience. The American law school now deserves failing grades in both departments.

I’m guessing his critique will resonate with some and infuriate others!

Who is the highest-level government official in the U.S. whose last name is also the name (whether full or conventionally shortened) of a religious holiday? 

And, yes, I realize that the various levels of government officials aren’t always directly comparable, but they often are; a state supreme court justice, for instance, would in my view comfortably beat a city council member (though if you want to argue about how to rank the Wyoming Supreme Court and the Los Angeles City Council, be my guest).

UPDATE: Just to clarify, saints’ days don’t count as religious holidays, at least unless they are routinely celebrated as religious holidays. So people with the last name of Valentine and Patrick don’t qualify.

FURTHER UPDATE: I should also note that I’m looking for someone whose name is the name, whether full or conventionally shortened, of a religious holiday; so even if St. Patrick’s Day is treated as a religious holiday, the person’s last name would have to be St. Patrick’s Day and not just Patrick (since to my knowledge Patrick is not the conventionally shortened name of a religious hoilday).

Over at NRO, Ed Whelan has been following some bizarre manuevering by the federal district court judge in the Northern District of California who apparently is trying to have a televised “show trial” regarding Proposition 8. 

Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work.  Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one.    Moreover, it does appear that public comment process has been completely short-circuited.

Follow up to Eugene’s post on the Muhammad Cartoon attack ... see Bruce Bawer’s article in City Journal, “While Europe Sneered.” And although I received a comp copy of the Voltaire Project printing of the cartoons, I have ordered a paid copy and have requested that my school’s library order the book.  Please consider doing the same.  When I am in Paris, I make a point of visiting the Pantheon to lay flowers at Voltaire’s tomb.

Now I have a question ... I have been finishing a section of my book on UN-US relations on the US-Egypt expression-religion provision offered by the Obama administration a few months ago as part of its “engagement” policy in the UN Human Rights Council.  I am critical, to say the least, as will surprise no one.  I have also read lots and lots and lots on the whole religion-speech controversy in the UN, going back to its origins up to its current argument.  But I want to be sure to cover the bases.  What would readers point me to as the best articles or discussions on this issue, specifically at the UN?  Academic or otherwise?

Also, side note, does anyone know who or what office at State was responsible for coming up with this language?  Was it developed out of the UN mission?  I thought it was the assistant secretary for human rights, democracy, labor, but perhaps I am wrong.  What office was responsible for developing this language?

OK, I’m not sure I’m entirely persuaded by Stewart Baker’s post — it’s not clear, for instance, why handcuffing was proper under the circumstances — but the title is very funny.

Interesting thoughts on air travel security from Tunku Varadarajan, at the Daily Beast.

Today’s important D.C. Circuit decision in Al Bihani v. Obama held that international law does not in any way constrain the president in the exercise of his executive authority under the 2001 Authorization for the Use of Military Force that gave him the power to wage war against al Qaeda and its allies. I am no great enthusiast for the incorporation of international law into domestic jurisprudence (see here and here). Nonetheless, I fear that the D.C. Circuit has gone too far here. According to the majority opinion written by Judge Janice Rogers Brown:

Before considering [the detainee’s] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is
no indication in the AUMF, the Detainee Treatment Act of 2005, ... or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.

It is certainly true that Congress has never enacted a statute requiring the president to follow “[t]he international laws of war as a whole.” But it has compelled the executive to follow those international laws embodied in treaties such as the Geneva Convention that have been duly ratified by the Senate. Article VI of the Constitution clearly states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Such treaties are therefore binding on the president, as on other government officials. Judge Brown points out that the AUMF and later legislation did not expressly state that these treaties bind the president. However, they don’t have to. The treaties — like other duly enacted laws — are binding of their own force and don’t need to be reiterated in later statutes. 

It’s possible that Brown means to argue that these treaties were binding before 2001, but that the AUMF repealed them in so far as they might limit the president’s actions in the War on Terror. I don’t see any indication of that in the text of the AUMF, the relevant portion of which gives the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Indeed, the text only gives the President the power to use force that is both “necessary” and “appropriate.” Presumably, the word “appropriate” applies only to such force as is legally permitted under American law governing the wartime use of military force. Otherwise, that term would be superfluous. Moreover, when the AUMF was enacted, no one in Congress or the Bush administration claimed that it freed the President of all treaty-based restraints on his wartime conduct. If the resolution were understood to be making such a radical departure from previous legal rules, it would surely have been pointed out and debated at the time. The Supreme Court has often stated that it disfavors interpreting new laws as repealing old ones “by implication.” Surely that rule is especially appropriate in a case like this one, where the asserted implied repeal is so sweeping. Indeed, the Court has ruled that “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” There is no such irreconcilability here, since the text of the AUMF can easily be interpreted as permitting only such force as is permitted by previous US law governing the wartime use of military power.

It is true, as the Supreme Court ruled in the Medellin case, that some treaties duly ratified by the Senate are not enforceable in Court. But that is not true of all treaties with provisions restricting wartime conduct. Indeed, the Supreme Court has in fact enforced some of these treaties as recently as the Hamdan v. Rumsfeld in 2006.

The D.C. Circuit was on firmer ground in denying that the president is required to follow customary international law, treaties that have not been ratified by the Senate, or other international law materials that have not been incorporated into American domestic law by the US legislative process. John McGinnis and I defended that position at length here. For reasons we explained in that piece, there is good reason to block such “raw international law” from overriding the domestic law of liberal democracies. However, defensible skepticism about international law doesn’t justify the conclusion that the US can never enter into binding international agreements that restrict the president’s wartime actions. Neither does it justify concluding that the AUMF swept away preexisting legal restrictions on the wartime use of force. 

I agree with most of the rest of Judge Brown’s reasoning, and I think the court was right to uphold the president’s power to detain Al Bihani. As Judge Stephen Williams pointed out in his concurring opinion (which also rejected the majority argument criticized here), Al Bihani himself admitted that he served an armed unit allied with the Taliban and al Qaeda, and carried a weapon as part of his duties. That is ample reason to detain him as an enemy combatant — even if his primary work was to cook for the enemy fighters rather than participate in combat directly, and even if (as he claimed) he was working for the unit as an independent contractor rather than a full-fledged member. But the D.C. Circuit should have reached that conclusion without ruling that the president’s use of executive power in the War on Terror is completely unconstrained by international law of any kind.

UPDATE: I should have noted that the Military Commissions Act of 2006 does prevent War on Terror detainees from filing claims based on the Geneva Convention. However, that still does not foreclose all international law claims.

The most recent instance of self-censorship of the Mohammed cartoons, because of fear of violent reaction, should remind us all of the importance of Voltaire Press’s Muhammad: The Banned Images.

Please support Voltaire Press’s project by (1) urging your library (public or university) to buy the book so as to make it more available to the public, (2) buying the book yourself, or (3) publicizing the book. I sadly note that a Lexis search for “Muhammad: The Banned Images” found no newspaper stories about the book.

UPDATE: Thanks to commenter Mark J. Nelson, I have learned that the book is owned by the university libraries at Stanford, Boston College, George Mason, and Franciscan University of Steubenville, Ohio, and by the public library in Princeton, New Jersey.

The Index of Censorship ran an interview with Jytte Klausen, which was titled (at least in the online version) “See No Evil,” and began this way:

Jytte Klausen talks to Index on Censorship about her new book on the Danish cartoons crisis and discusses why it was published without any illustrations

Jytte Klausen’s book The Cartoons That Shook the World (published by Yale University Press) is the first scholarly examination of the notorious controversy that erupted in 2006. Klausen is a respected scholar: she won the Carnegie Scholars Award for her research on Muslims in Europe and is professor of comparative politics at Brandeis University in the US. Three years ago, she set out to unravel the genesis of the debacle and to analyse the cartoons and their impact. Last summer, several months before publication, Yale University Press unexpectedly took the decision not to publish the cartoons in her book. After reading Klausen’s manuscript in the spring, the director of the press, John Donatich, was ambivalent about republishing the cartoons: on grounds of taste, offence and the possibility that it might reignite the conflict. He also noted that the cartoons were available for readers to see online. He consulted Yale University who assembled an advisory panel of diplomats, academics and US and UK counter-terrorism officials who advised that there was a strong chance of violence breaking out if the cartoons were published. Klausen was told that she could only read the gagging order. Not only were the cartoons removed from the book, but historic illustrations of Mohammed that Klausen had wanted to include to illustrate her thesis were also omitted. When the story leaked to the American press last summer, Yale was widely criticised for undermining academic freedom. Christopher Hitchens described it as “the latest and perhaps the worst episode in the steady surrender to religious extremism”. In a statement, Yale University Press defended its decision with reference to the expert panel’s advice “that there existed a substantial likelihood of violence that might take the lives of innocent victims”. John Donatich took full responsibility for the final decision, but there have been concerns at the university’s intervention in the press’s independence.

But the interview was published without any of the cartoons that were the subject of Klausen’s book, and of the controversy surrounding the book. The reason, given in the statement from the Index Chair (click on the link to read the full statement):

A year earlier, in September 2008, four men had been arrested for allegedly fire-bombing the North London home of the publisher of Gibson Books who had proposed publishing The Jewel of Medina. Only the most cavalier attitude towards the safety and security of those directly and indirectly involved in the publication of the Index interview would have failed to note that outrage.

The board’s main concern was both for individual members of the Index staff and those who worked for the seven other organisations which share our Free Word premises in Farringdon Road, and who would have been equally on the receiving end of any attack aimed at Index. Nonetheless, a decision to prevent the re-publication of the cartoons (Index had decided against their publication in the magazine when the worldwide protests erupted in 2005) could not be taken lightly by those responsible for leading an organisation whose very essence is to protect and enhance freedom of expression in a world where the rich and powerful are busy eroding what ought to be a fundamental right in any civilised society.

For this reason I consulted the Index editor and established that, in her view, publication of the cartoons — though very desirable — was not crucial to an interview which did not focus on the cartoons themselves but on the process by which Yale decided against their publication....

Here’s a dissenting statement from Index board member Kenan Malik:

Index on Censorship has in recent years chronicled many instances of what we’ve called “pre-emptive censorship”: the willingness to censor material because of fear either of causing offence or of unleashing violence. From the Deutsche Oper cancelling a production of Idomeneo to Random House dropping The Jewel of Medina to Yale University Press’s refusal to publish the cartoons in Jytte Klausen’s book, the list is depressingly long. It is a development that, writing in the magazine last year, I described as “the internalisation of the fatwa”.

It is both disturbing and distressing to find Index on Censorship itself now on that list. I profoundly disagree not just with the decision to censor the cartoons but also with the reasons for doing so: that publication may have endangered staff and was “unnecessary” and, indeed, would have been “gratuitous”.

The safety of Index’s staff is, of course, hugely important. But where was the threat? Index certainly received none because no one knew that we were going to publish. Nor is there any reason to believe that there would have been danger had the cartoons not been pre-emptively censored. Islamic scholar Reza Aslan, describing Yale’s original decision as “idiotic”, pointed out that he has “written and lectured extensively about the incident and shown the cartoons without any negative reaction”. And, as Jo Glanville, editor of Index on Censorship, observed in an article in the Guardian earlier this year critical of Random House, pre-emptive censorship often creates a “self-fulfilling prophecy”. In assuming that an “offensive” work will invite violence one both entrenches the idea that the work is offensive and helps create a culture that makes violence more likely.

The question that now arises is this: what should Index do when the next Jewel of Medina comes along? After all, we cannot in good conscience criticise others for taking decisions that we ourselves have taken and for the same reasons. So, does Index now believe that it was right for Deutsche Oper, Random House, Yale University Press (and myriad others) to censor?

As for the suggestion that publication would have been “unnecessary” or “gratuitous”, I cannot see what could be less unnecessary or gratuitous than using cartoons to illustrate an interview with the author of a book that was censored by a refusal to publish those very cartoons. Almost every case of pre-emptive censorship, including that of Yale University Press, has been rationalised on the grounds that the censored material was not necessary anyway. Once we accept that it is legitimate to censor that which is “unnecessary” or “gratuitous”, then we have effectively lost the argument for free speech.

Index on Censorship is involved in many important campaigns, from libel reform to the defence of threatened journalists. Its authority in these campaigns rests largely upon its moral integrity. As a long-standing board member, I am deeply committed both to the cause of free speech and to the success of Index in pursuing that cause. What I fear is that in refusing to publish the cartoons, Index is not only helping strengthen the culture of censorship, it is also weakening its authority to challenge that culture.

For a similar view to Malik’s, please see the Statement of Principle criticizing the Yale University Press decision (signed by, among others, Joan E. Bertin, Executive Director of the National Coalition Against Censorship, Cary Nelson, President of the American Association of University Professors, and Nadine Strossen, former President of the ACLU). For the cartoons, posted and discussed on this blog, see here.

A terminological note: I generally don’t approve of using “censorship” or “self-censorship” to mean mere market pressure — or simply declining to publish something because of one’s own ethical judgment or a desire to accommodate one’s customers — at least setting aside special institutions that I argue ought to protect speech much as the government does. (For an extended discussion of that, see my Deterring Speech: When Is It “McCarthyism”? When Is It Proper?, 93 Cal. L. Rev. 1413 (2005).) But speech suppression by threat of private violence or vandalism strikes me as similar enough to speech suppression by threat of government force that the label “censorship” can reasonably cover both. Likewise, restricting one’s speech for fear of private violence strikes me as meriting the label “self-censorship” much like restricting one’s speech for fear of improper government suppression.

Thanks to Will Brennan for the pointer.

If you have complaints about TSA, at least they haven’t pulled any stunts as dumb as placing real explosives in the luggage of innocent passengers as part of a security test. The BBC reports:

Irish police have released a man held over an explosives find, after Slovak authorities admitted planting them in his luggage as part of a security test.

The explosives were among eight contraband items placed with passengers at Bratislava Airport last weekend, broadcaster RTE reported. The 49-year-old man unwittingly brought the material into Dublin when he returned from his Christmas holidays. He was arrested on Tuesday morning but has since been released without charge. 

Minister for Justice Dermot Ahern said he was very concerned that Irish police had not been alerted for three days.

Airport security detected seven of the illicit items, but the eighth — 90g of research development explosive — managed to escape detection. Slovak authorities were reportedly trying to test screening procedures for checked-in luggage by placing items with unwitting passengers. 

Hat tip: Slashdot.

Former Panamanian general and “chief executive officer” Manuel Noriega will forever be associated with the “war on drugs”:  After the US invaded Panama and removed him from power in 1989, he was convicted of federal drug trafficking charges and he has been in prison ever since.  But it appears that he has come to the Supreme Court’s attention this Term because he has raised legal questions relating to a different war–the “war on terror.”  And he definitely has the Court’s attention:  Among the cases that the Supreme Court has relisted for consideration at the Court’s private conferences, none this Term has been relisted more times than Manuel Noriega v. Pastrana, 09–35.

Noriega was convicted in 1992.  In response to complaints about his conditions of confinement, District Judge William Hoeveler declared him to be a prisoner of war and the federal government, in what must seem like a bad idea in retrospect, chose not to appeal.  I have heard that Noriega has been provided with various items to which POWs are entitled (such as a complaint box) and he is entitled to wear the military uniform of his long-defunct regime.  His original sentence of 40 years was reduced to 30 years, and because he was parole eligible under the pre-Guidelines system, he was scheduled to be paroled in September 2007.  But before he could be paroled, France asked us to extradite him so he could face money-laundering charges there.  Noriega was convicted in absentia there (but he apparently will be able to seek a new trial upon his surrender to French authorities).

A federal magistrate judge certified Noriega for extradition, but he resisted, claiming he could not be extradited under the Third Geneva Convention relative to the treatment of prisoners of war, Article 118 of which provides that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”  (Seems like that would have occurred by 2007, or even by 1992, but I digress.)  The district court rejected his habeas corpus petition, and the Eleventh Circuit affirmed in an opinion by the itinerant Judge Restani, sitting by designation from her usual seat on the Court of International Trade (and joined by Judges Dubina and Carnes).  The court held, first, that Noriega had failed to “assert any applicable law which would prevent his extradition to France.”  (The reasoning goes that the Geneva Convention permits continuing to hold POWs who have committed criminal offenses, and besides, we have a separate extradition treaty with France.)  Second, it held that section 5(a) of the Military Commissions Act of 2006–enacted in the waning days of the Republican Congress to provide a statutory basis for trying enemy combatants in military commissions in the wake of Hamdan v. Rumsfeld, 548 U.S. 557 (2006)–provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action.” The court concluded that “it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty,” slip op. at 10 (citing Medellin v. Texas, 128 S. Ct. 1346, 1359 n.5 (2008)), and that “Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.”  Id. at 11.

Noriega filed a cert petition on July 7; the government opposed cert, and Noriega filed a reply.  Since then, the case has been relisted a whopping eight times (at the Court’s 10/9, 10/19, 10/30, 11/6, 11/13, 11/24, 12/4, and 12/11 conferences).  The case is currently on the calendar for consideration at this Friday’s conference.

It is highly unusual for the Court to relist a case so many times.  When the Court relists repeatedly, in my experience, it typically means one of three things: (1) one of the Justices wants time to consider concerns raised by another Justice at conference in order to decide how to vote; (2) the Court is preparing an opinion summarily reversing the decision below; or (3) someone is writing a dissent from denial of cert.  It’s impossible to know with any certainty what is going on inside a “black box” like the Court; but based on the docket, I have my suspicions.

It clearly isn’t (1):  It typically takes no more than one or two relists to give a Justice time to review a case in detail to know whether concerns raised by another Justice warrant a grant.  Nor do I think summary reversal is in the offing.  That step ordinarily is reserved for cases in which an appeals court decision is clearly erroneous under established law, and in my view, the law in this area wouldn’t support a showing that the Eleventh Circuit’s decision was so clearly wrong as to warrant summary reversal.  Thus, it seems likely that someone is writing a dissent from denial of certiorari.  I would think the favorite candidate to author such an opinion would be Justice Stevens, the author of numerous opinions with “Rumsfeld” in the caption (i.e., war on terror detention opinions–majority opinions in Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, supra, and a dissent in Rumsfeld v. Padilla, 542 U.S. 426 (2004)) and who, as a veteran, may not be a huge fan of a provision stating that the Third Geneva Convention won’t support a habeas petition.   Another possibility is Justice Breyer, who dissented from the Court’s opinion two terms ago in Medellin v. Texas, supra, the Court’s most recent exegesis on what makes a treaty self-executing and on Congress’s ability to change domestic law notwithstanding an earlier treaty. 

With apologies to General Noriega, I doubt the dissenters are very much concerned about his case, but rather are concerned because of its implications for an entirely different class of cases.  Section 5 of the 2006 MCA, after all, wasn’t enacted to address Noriega’s confinement, but rather to address (among other things) detention of suspected enemy combatants in the war on terror.  The Justice Department invoked the Eleventh Circuit’s decision the day after it was announced in a filing in D.C. District Court to oppose claims by Guantanamo detainees challenging their conditions of confinement under the Third Convention.  As Noreiga’s reply brief states, “[t]he decision below affects the rights of hundreds of prisoners in United States’ custody.  While these prisoners are currently designated ‘enemy combatants,’ no court has yet decided their status under the Geneva Convention.”  Reply Br. 1. 

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court invalidated section 7 of the MCA, holding it violated the Suspension Clause to the extent that it “deprive[d] the federal courts of jurisdiction to entertain the habeas corpus actions” brought by alien enemy combatants.  Id. at 2244, 2274.  In a footnote in its brief in opposition in this case, the government distinguishes section 5 from section 7, stating that “[u]nlike Section 7, which was a jurisdiction-stripping provision, Section 5 does nothing to prevent a person from seeking habeas relief.  It merely removes ‘one substantive provision of law upon which a party might rely in seeking habeas relief.’”  Br. in Opp. 8 n.* (quoting the Eleventh Circuit’s decision).  Although the Eleventh Circuit similarly concluded that “[w]e are not presented with a situation in which potential petitioners are effectively banned from seeking habeas relief because any constitutional rights or claims are unavailable,” it may be that some of the Justices disagree, or at least have sufficient concerns that they’d like to hear the case on the merits. 

But it’s even taking a bit long to get out a simple dissent from denial of cert., which may suggest that someone who opposes cert has filed a concurrence in the denial of cert, and the concurrence and dissent are busy trading barbs.  See, e.g., Callins v. Collins, 510 U.S. 1141 (1994) (Scalia, J., concurring in denial of cert, and Blackmun, J., dissenting from it).  As suggested by the Callins cite, one obvious candidate is Justice Scalia, who has written similar opinions before and who has been known to disagree with Justice Stevens on detention issues (except in Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).  Another possibility, suggested by my former OLC colleague Steve Engel, is Chief Justice Roberts, who was the author of the majority opinion in Medellin.  (Or perhaps, as discussed in earlier posts, it may just be that everything is gummed up because of Citizens United.)

As an aside, note that the D.C. Circuit’s important war on terror detention opinion today, Al-Bihani v. Obama, notes that “the MCA of 2006, in a provision not altered by the MCA of 2009, explicitly precludes detainees from claiming the Geneva conventions—which include criteria to determine who is entitled to P.O.W. status—as a source of rights.  See 2006 MCA sec. 5(a).”  (Thanks again to the eagle-eyed Steve Engel for the tip.)

(Update:  Thank you Instapundit)

David Brooks has a piece up today in the Times attracting much comment. I am no populist, except perhaps by David Frum’s unexacting standards, but let’s just say I think that Brooks somewhere along the way lost the marvelous tuning that made him the true heir of Veblen.  I think it was the need at the Times to do politics rather than Bobo culture and “comic sociology.”  As for me, well, how much of an elitist am I?  An editor of the TLS once told me, “Ken, you have almost exquisite taste.  It would be flawless, too, except for your fondness for the novels of AA Gill.”

Here is my response to David Brooks, en passant, taken with some editing from the conclusion of an essay of mine in the Columbia Law Review in 1996, reviewing books on lawyers, elites, and the therapeutic New Class.

A New Class of Lawyers: The Therapeutic as Rights Talk (96 Columbia Law Review 1092 (May 1996).) (SSRN link)

The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want to dominate.

The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream, made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem ...

In this unforgiving light, the unhappiness of lawyers looks rather less like professionals experiencing the loss of fulfillment that accompanies losing “ownership” of the social ends of the legal profession and rather more like the unhappiness of experts who, having established to their own satisfaction the certainty of ends not open for argument by non-experts, wonder why they are not also loved.

The issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued “hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights.” It predominates because, far from being merely a language of individual liberty or even unbridled individual license (as, for example, the communitarians would have us believe) it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being “liberals” will not reclaim rights talk any time soon. Its appropriation is at the core of the process by which the state today controls, as the late Christopher Lasch wrote, “not merely [the individual’s] . . . outer but his inner life as well; not merely the public realm but the darkest corners of private life, formerly inaccessible to political domination.”

Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.

It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.

The American Law Institute has decided to pull its model death penalty statute, as recounted in this New York Times article.  As Kent Scheidegger points out in this detailed post, the action was not  intended to be a statement by the ALI that the death penalty should be abolished.  Nonetheless, that appears to be the spin being put on the action by death penalty opponents. 

I found particularly interesting Berkeley Law Professor Franklin Zimring’s statement in the New York Times article that they ALI “were the only intellectually respectable support for the death penalty system in the United States.”  Apparently now if you support the death penalty in this country (as most Americans do), then you are not “intectually respectable.” 

Professor Doug Berman has an interesting take on the issue over at his Sentencing Blog.

Earlier today the U.S. Court of Appeals for the D.C. Circuit released its opinion in Al Bihani v. Obama, its first substantive post–Boumediene Guantanamo detainee habeas decision.  In an opinion by Judge Janice Rogers Brown, the court rejected Al Bihani’s habeas claims, affirmed the district court’s denial of his habeas petition and embraced a fairly expansive assertion of the federal government’s detention authority.  Judge Brown also wrote a short separate concurring opinion, and Senior Circuit Judge Stephen Williams wrote a separate opinion concurring in part and concurring in the judgment.  Judge Brett Kavanaugh joined Judge Brown’s opinion for the court in full.

Unless it is overturned, this decision could be quite significant.  SCOTUSblog has coverage here.  University of Texas law professor Robert Chesney has also written a useful summary of the opinion for his national security law e-mail distribution list which I’ve reproduced below the fold.

Continue reading ‘D.C. Circuit Upholds Broad Detention Authority’ »

Ford Motor Company’s December 2009 sales were up 33 percent from December 2008.  By comparison, Chrysler’s sales were down 4 percent.  GM has yet to report.  One factor is almost certainly the quality of Ford’s product — my wife certainly loves her Ford Edge and hopes we’ll get another when the lease runs out — but I suspect Ford’s position as the only major U.S. automaker to neither go bankrupt nor take bailout money is another.

UPDATE: GM December sales were down 6 percent.  Most foreign automakers posted December gains.  Honda, for instance, reported a 24 percent increase in December sales; Nissan an 18 percent gain.

Congressional leaders may dispense with the traditional House-Senate conference to reconcile the two chambers’ competing health care bills in favor of less formal negotiations.  Whatever form the process takes, C-Span would like to be there.  On December 30, C-Span CEO Brian Lamb sent a letter to Congressional leaders requesting that his network be able to provide live coverage of the negotiations.  The congressional leadership has yet to respond.  According to Politifact.com, during the presidential campaign, then-Senator Barack Obama repeatedly promised to allow C-Span coverage of negotiations over health care reform.

UPDATE: Conferences for highly contested bills may be a thing of the past.

“There has never been a more open process for any legislation,” according to House Speaker Nancy Pelosi.  Even if true, that would not be saying much.  The Republicans did not set so high a bar.  Also, TPM: “Oh, Snap!”

SECOND UPDATE: Igor Volsky of Think Progress thinks televising any House-Senate negotiations would bea bad idea and Ezra Klein is conflicted.

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case.   In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases.  Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution.  Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution.  If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

The statute that Judge Schiltz cites, found here, directs district courts to order restitution for the “full amount of the victim’s losses.”  In this particular case, a young girl who was raped and had pictures of the crime taken seeks several million dollars in restitution to pay for counseling and other expenses resulting from the crime. 

The victim has sought these damages not only from the defendant convicted in this case in Minnesota but more broadly from every defendant convicted of viewing the images taken of her  against her will.   For instance, she sought such restitution in Texas.  There, a federal district court judge ruled that she could not trace her injuries specifically to the particular defendant convicted in that case.  She sought mandamus relief in the Fifth Circuit, which held in a recent opinion that the district judge was not “clearly and indisputably” wrong in declining to order restitution for the girl.  [Full disclosure: in the district court, I filed a brief on behalf of the National Crime Victims Law Institute supporting the restitution application.] 

The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court.  My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography.  Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.

Yesterday the Supreme Court granted petitioners’ motion to dismiss the writ of certiorari pursuant to Rule 46 in the spellcheck-challenging Pottawattamie County v. McGhee, 08–1065, which involved whether prosecutors who try a case are entitled to immunity when sued for allegedly procuring before trial false evidence to frame a criminal defendant. The motion, which petitioners filed December 30, and to which respondents evidently consented yesterday, was precipitated by a settlement in which the County and its insurers reportedly paid plaintiffs Terry Harrington and Curtis McGhee $12 million.   Harrington, who spent nearly 26 years behind bars, will get a little over $7 million, and McGhee (whose case may be marginally weaker because I seem to recall he pleaded guilty again after his first conviction was overturned) just under $5 million. 

While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue.  The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant.

When the Court is considering a case, it typically “holds” other cases that present the same question pending the case’s resolution; when a case is dismissed for whatever reason after argument, the Court not infrequently chooses another case from among those being held and uses it as a vehicle for resolving the question.  The Court does not state on the docket that a case is being “held”; instead, you typically see that a case has been assigned to a specific conference for consideration, and then there simply are no further docket entries. Thus, it is not particularly easy to find which cases on the Court’s docket are being held unless you happen to be watching a case as it moves through the system (or unless the government is a party to the case; its hold recommendations in non-IFP cases, which the Court typically follows, are available on the SG’s Office website). 

While I have compiled a list of cases I suspect the Court is holding pending resolution of cases on its merits docket, I am not aware of any cases being held for Pottawattamie County. Nor am I aware of any pending cases out there that present the same question. If you know of any, let me know in the comments. It’ll be interesting to see where this goes.

I’ve posted this article, published in the Brooklyn Law Review, on SSRN.  It’s  intended to be a more or less practical guide for judges and attorneys to causation issues in toxic tort cases, not a philosophic treatise (not that there’s anything wrong with that!).  Here’s the abstract:

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.

While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article’s unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts’ adherence to traditional notions of causation against their critics.

Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Part II discusses plaintiffs’ attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs’ exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.

Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.

I have a column in the Wall Street Journal today on the subject of proposed interventions to regulate credit card interchange fees, “Will Congress Take Another Swipe at Credit Cards?”

The Financial Times runs a story today by Francesco Guerrera and Nicole Bullock on the looming problems of underfunded public pensions at the state and local level in the United States.  The news story cites a new study by Orin Kramer, chairman of New Jersey’s pension fund:

The estimate by Orin Kramer will fuel investors’ concerns over the deteriorating financial health of US states after the recession. “State and local governments are correctly perceived to be in serious difficulty,” Mr Kramer told the Financial Times.

“If you factor in the reality of these unfunded promises, their deficits will rise exponentially.”

Estimates of aggregate funding requirement of the US pension system have ranged between $400bn and $500bn, but Mr Kramer’s analysis concluded that public funds would need to find more than $2,000bn to meet future pension obligations.

Two trillion dollars?  One question about these obligations is whether taxpayers will stick around to pay them, or instead will vote with their feet.  (“Vote with their feet” is something that has been discussed in various ways at VC — as an aspect of a federal system and states with their own laws.)  Many of these pension obligations have been incurred by municipalities and others by states, and in some cases the obligations are intertwined.  But what happens if voters-taxpayers move out?

The assumption has long been that taxpayers are stuck, on account of jobs and other circumstance.  But query whether that is necessarily true as the baby boom generation retires.  In that case, it might find itself far more mobile, in circumstances where rising taxes at every level make relocation a more valuable decision at the margin.  For that matter, if otherwise desirable locales manage to tax their businesses away, will the baby boomers’ kids and grandkids have reason ever to locate in places that lack jobs?  They might have been raised there — but would they go back?

Would people leave California? They are leaving now, true, but would they leave in the future specifically for this reason or generally on account of the tax burden, particularly as retirees?  Or New Jersey?  What about the city of Oakland?  Or even smaller cities, such as the towns in California — not large at all, small towns, that have already declared bankruptcy over pension obligations?  It’s easy to move out of those towns.  For that matter, what about a municipality declaring bankruptcy in anticipation of un-meetable pension burdens down the road — in other words, you know it can’t be met, you know that your tax base will move out, and even though you are solvent now, you see that you won’t be down the road — and if you restructure now, you can save a much worse situation by not driving out your taxpayers.  But is that available under bankruptcy?  I’m not a bankruptcy specialist — it might not be possible to do so as a matter of law; someone can tell me in the comments.

In theory, all parties should be able to see the train wreck coming and renegotiate now, but the reality is, parties won’t do that, because they will lock horns over how much of promised benefits can get paid by increased taxation, and many other things.  That’s why bankruptcy judges have much of their discretionary power to impose things on parties nearly all of whom have varying degrees of hold-up.  Query too whether less heavily obligated jurisdictions might woo people to come, and perhaps pass measures as part of state constitutions limiting levels of indebtedness and writing in provisions that would cover future contingent pension payments.

How might the heavily indebted jurisdictions respond to taxpayer exit?  (Their position becomes a little like the position of utilities with “stranded” costs — and presumably that is how they would present their case, not as having profligately promised benefits as politicians to favored public employee constituencies, but instead as having provided services to taxpayers over decades but now getting stuck with the check.)  One way would be to try and impose taxes (and perhaps “fees”) that “follow” people who leave the jurisdiction.  More likely, I would think, would be an effort to federalize the pension bill.  Alternative one would simply  have the federal government assume the burdens, and presumably set the rules for future pensions.  Alternative two would be to leave the debts where they are, but have series of federal transfers to state and local jurisdictions to cover them, the unending bailout-stimulus.

The alternative to all of these, of course, would be for states and localities to declare bankruptcy and have a judge restructure the obligations and, one assumes, lower the obligations and the benefits.  It is an alternative often touted.  I worry, however, that people who call for it assume that the bankruptcy system, which was created to deal with mostly manageable private bankruptcies and the occasional huge corporate wipeout and the occasional public finance disaster, would somehow stay above politics and remain the same essentially apolitical system it is now.  That, after all, is what people who look to the bankruptcy system to resolve all these public finance messes seek — a set of neutral, apolitical rules of the kinds that govern private bankruptcy.

When relatively apolitical systems of these kinds are asked to take on, however, not just the occasional role in deeply politicized issues, but instead to take them on as a whole endemic category, now and into the future — it is very hard to see that the apolitical nature of the system is not inevitably changed.  How could it not be, over time?  (The same is true of the Fed, I would think.)  A bankruptcy system that contains, for good reasons, much discretionary authority on the part of the judge, and the ability of Congress to revise the rules, and then gradually takes on as its most visible and public function the resolution of public (and hence political) finance questions, it seems to me, will sooner or later lose the elements of neutral, apolitical decision-making arising from a system fundamentally about private bankruptcy and corporate restructuring.  It will become something else.  Institutions and systems of governance are not static.

(Realistically, however, what happens regarding public pensions is a political function of  the political power of the public employee unions, at all levels of government, as highly organized, interested, focused political groups — as against disorganized publics as taxpayers, represented in theory, but often not in fact, by politicians in state and local government.)

Tommorrow, Tuesday, Opinio Juris will be hosting a one-day discussion of the new book by Gregory Shaffer and Mark Pollack, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford, 2009).  Sungjoon Cho and Rebecca Bratspies will join with guest commentary.  Stop on by!

George Will has written a Washington Post column on the abuse of “blight” condemnations in New York:

On Aug. 27, 1776, British forces routed George Washington’s novice army in the Battle of Brooklyn, which was fought in fields and woods where today the battle of Prospect Heights is being fought. Americans’ liberty is again under assault, but this time by overbearing American governments.

The fight involves an especially egregious example of today’s eminent domain racket. The issue is a form of government theft that the Supreme Court encouraged with its worst decision of the past decade — one that probably will be radically revised in this one.

The Atlantic Yards site, where 10 subway lines and one railway line converge, is the center of the bustling Prospect Heights neighborhood of mostly small businesses and middle-class residences. Its energy and gentrification are reasons why 22 acres of this area — the World Trade Center site is only 16 acres — are coveted by Bruce Ratner, a politically connected developer collaborating with the avaricious city and state governments.

To seize the acres for Ratner’s use, government must claim that the area — which is desirable because it is vibrant — is “blighted....”

The Constitution says that government may not take private property other than for a “public use....” In 1954, however, in a case concerning a crime– and infectious-disease-ridden section of Washington, D.C., the court expanded the notion of “public use” to include removing “blight.”

Since then, that term, untethered from serious social dangers, has become elastic in the service of avarice....

I discussed the state high court decision upholding the Atlantic Yards condemnations in this post. For my earlier analyses of the case, see here and here. Will’s column also discusses the recent court decision striking down Columbia University’s efforts to use eminent domain to acquire supposedly “blighted” property, a case I discussed here.

As I explained in the earlier posts linked above, New York jurisprudence is perhaps the most hostile to property rights in the entire country. However, the general problem of overbroad definitions of blight exists in many states. Unconstrained definitions of “blight” undermine the efficacy of many states’ post-Kelo eminent domain reform laws, which forbid “economic development” condemnations but allow the same types of takings to continue under the guise of blight alleviation, an issue I discussed in detail in this article.

It is fortunate that a columnist as prominent as Will has taken up this issue. Hopefully, his contribution will increase awareness of the problem.

Tags: Atlantic Yards

Mike Rappaport has a nifty little post (taking off an earlier post by Tom Smith) on Leo Strauss and the Straussians.  I’ve never fully understood the intramural battle among the Straussians, but this seems like a useful roadmap.  I’ll confess that I wasn’t even aware that there was a Midwestern Straussian school.

I know little about Strauss and the Straussians (although, as the expression goes, some of my best friends are Straussians).  But I have long been interested in Strauss from an outsider’s perspective.  One of my favorite professors in college (Roger Masters) was a Straussian.  I learned an awful lot from him (especially on how to read critically).  I rarely agreed with him, perhaps because I am an enthusiast for modernity (see Rappaport’s summary above).

Now maybe someone can explain to me the disagreements among the Austrian economists, the Objectivists, and the People’s Front of Judea (versus the Popular People’s Front) then I will have all wisdom.  On second thought...

From Reuters:

A Cairo court ruled on Sunday in favour of the Egyptian government’s decision to ban female students wearing the niqab, or full face veil, in university examinations....

The government said it brought in the ban in part because students, male and female, were sitting exams disguised as other candidates by wearing a face veil....

In 2007, a court ruled that the American University in Cairo, seen as a bastion of Western liberal education in Egypt, was wrong to bar a female scholar who wears the niqab from using its facilities. The court cited personal and religious freedom as grounds for its ruling....

Thanks to Religion Clause for the pointer.

Provocative, interesting essay by Walter Russell Meade in the latest Foreign Policy, The Carter Syndrome.  It argues that Obama is a Jeffersonian in his foreign policy trying to come to grips with his Wilsonianism (“Barack Obama might yet revolutionize America’s foreign policy. But if he can’t reconcile his inner Thomas Jefferson with his inner Woodrow Wilson, the 44th president could end up like No. 39.”).  Among the other matters of interest in the article is Meade setting out four broad paradigms of US foreign policy historically:

In general, U.S. presidents see the world through the eyes of four giants: Alexander Hamilton, Woodrow Wilson, Thomas Jefferson, and Andrew Jackson. Hamiltonians share the first Treasury secretary’s belief that a strong national government and a strong military should pursue a realist global policy and that the government can and should promote economic development and the interests of American business at home and abroad. Wilsonians agree with Hamiltonians on the need for a global foreign policy, but see the promotion of democracy and human rights as the core elements of American grand strategy. Jeffersonians dissent from this globalist consensus; they want the United States to minimize its commitments and, as much as possible, dismantle the national-security state. Jacksonians are today’s Fox News watchers. They are populists suspicious of Hamiltonian business links, Wilsonian do-gooding, and Jeffersonian weakness.

In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that it violated the Fourth Amendment to direct an infrared thermal imaging device at a home without a warrant to determine the home’s temperature. This post asks whether that result is still good law. I realize that probably sounds a bit nutty at first, as Kyllo is only a few years old. But Kyllo deliberately adopted a test designed to let the result change with social practice . This post asks whether changing social practices already allow the police to use thermal imaging devices without a warrant.

I’ll look at the problem in three steps. First, I’ll explain the relevant Fourth Amendment test from Kyllo. Second, I’ll explain how technology and social practice have changed in the eight-and-a-half years since the Kyllo decision. And third, I’ll put the pieces together and ask whether Kyllo’s result remains good law. My bottom line: I’m not really sure, but there is a decent case to be made that the police can now use thermal imaging devices without a warrant consistently with Kyllo.

I. Kyllo and General Public Use

In Kyllo, the police used an infrared thermal imaging device called an “Agema Thermovision 210″ to scan a suspect’s home from the city street. The scan tool a few minutes, and it revealed that the roof over Kyllo’s garage was unusually hot — a sign, the government though, that the suspect was growing marijuana under heat lamps in the garage attic. The Supreme Court announced the following rule: “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Because infrared temperature sensing was not in “general public use,” the thermal imaging was a “search” that required a warrant. 

There are several ways to justify the “general public use” limitation on the result in Kyllo. Perhaps the idea was that if a technology is widely used by the public, it is not longer reasonable expect that it won’t be used. This reflects what I have called the probabilistic model of Fourth Amendment protection, and is hinted at in footnote 6 of Kyllo. Alternatively, perhaps the Court was trying to square the result in Kyllo with cases going back to the 1920s that that had allowed the police to use flashlights. See United States v. Lee, 274 U.S. 559, 563 (1927); United States v. Dunn, 480 U.S. 294 (1987) . After all, flashlights are devices used to explore details previously unknowable without a physical intrusion, and yet they have always been allowed. 

Whatever the reason for the limitation, it indicates that when remote infrared temperature detection devices enter general public use, the police can use them, too. Justice Scalia had no problem saying that such devices were not in general public use in 2001. In response to the dissent’s claim a hearing was required to determine how many of the devices were used, Justice Scalia responded that the majority was “quite confiden[t]” that the devices were not in general public use. 

That seemed right in 2001. But what about now?

II. Common Uses of Thermal Imaging Devices a Decade After Kyllo

Fast forward a few years, and remote infrared temperature-sensing has become quite common in a wide range of applications. The most widely-used devices are “single point” thermal imagers that are widely marketed to the public as infrared thermometers. These devices are akin to temperature guns: They tell you the temperature of whatever surface you’re pointing it at, usually aided by a laser sight to tell you exactly were you’re aiming. Here’s a Black & Decker model available for $50 at Amazon (with free super saver shipping, and note the 43 glowing user reviews). I myself bought a Raytek ST20 for about $120 two or three years ago. You can see how it works in this short video:

These thermometers have entered widespread use in recent years for a wide range of applications. For example, here’s an advertisement of an infrared-sensing device marketed to moms to take their babies’ temperatures:

More often, the devices are marketed to individuals for automotive or home insulation use. The ability to pinpoint surface temperatures helps you know where you need to insulate your home better for the winter; it also lets you find short circuits or know if an engine or electrical device is dangerously overheating. These devices seem to have entered the mainstream, as I see advertisements for them in catalogs. Here’s an advertisement that gives you an idea of typical uses:

Although the the single-point devices marketed to home users are in the $50-$150 range, the full-camera models now start around $2,000. Here’s the FLIR/Extech i5 handheld thermal imager available from Amazon for $1,995. These cameras don’t just give a single point temperature reading. Instead, they give you a full picture in real-time. In effect, they take a readings from lots of individual points and assemble the readings graphically to give you a full image of the temperature. Here’s an advertisement for one of the full-camera models that is aimed at property managers and HVAC companies:

III. Is the Result in Kyllo Still Good Law?

Ok, so that’s the current state of the technology. Now let’s go back to the Fourth Amendment.

The various devices I have described can be used to do what the government did in Kyllo, namely find a “hot” portion of wall or roof on a house. I’ve tried this on my own house with my Raytek ST20, the one I bought for $120 a few years ago. I stood in front of my house in the winter, when I knew the furnace was up and running, and I pointed the device at the exterior walls of my home. By scanning up and down and side to side from outside the house, I could see the rough outlines of where inside the house the radiators were located. It turns out that the radiators create hot spots on the wall next to them that make those portions of the exterior wall around 5–10 degrees warmer than the rest. 

So here’s the question. Can the police use these devices now? Are either the single-point or full-camera infrared imaging devices in “general public use”? Imagine a police officer goes on Amazon and buys the $50 Black & Decker model and directs it at a home to look for hot walls that might reveal marijuana lamps. That was a “search” in 2001. But is it a “search” in 2010? 

Also, does it depend how you define the “device”? When the Supreme Court enacts special rules that regulate certain technological devices, there is always the level of generality problem in interpreting the rule. You need to figure out how broadly or narrowly to construe the “device” covered by the rule. For example, perhaps you might say that all of the single-point infrared sensors are one “device” and the full-image sensors are another, and perhaps the former is in general public use while the latter is not? (Perhaps this is arbitrary, but then maybe not: After all, the single-point devices don’t automatically generate an “image,” and therefore perhaps are not “thermal imaging devices” even if they yield the same information.) Or perhaps they should all be grouped together?

To be clear, I am not posting this to be critical of Kyllo (although I have been critical of it elsewhere for other reasons). Rather, I am just trying to figure out how the case applies a decade or so later. Kyllo deliberately adopted a rule that allows the outcome to change along with society: I’m wondering if the intervening changes in society, as seen in Part II above, mean that the devices that the case prohibited without a warrant can now be used. I can’t be sure of the answer because the courts have never elaborated on the test for “general public use.” (Just how “general” is general enough?) But taking the case seriously, it seems to me that there’s at least a plausible case that the police can now use thermal imaging devices — or at least the simple single-point infrared devices — without a warrant.

In the various discussions about airport and airline security here at VC, a common response in the comments is something like this one (some version of this pops up from many commenters, and I’m just pulling up the most convenient example):

With the current procedures, flying is one of the safest things we do. Even with an occasional successful bombing, we would still be way below any level of acceptable risk. If we want to curtail civil liberties to save the lives of people flying, we should start by screening folks we allow to drive to the airport, you’re much more likely to get killed doing that.

It is a costs versus benefits argument (actually a couple of slightly different ones) pitting the costs of a successful bombing and “acceptable” risk, with a suggestion that an appropriate metric, by implication of preferring to regulate it instead, would be the drive to the airport.  It is a theme of much of the skepticism about US counterterrorism policies, a skepticism rooted in cost benefit analysis, but perhaps more accurately framed as skepticism about the proper things to be compared — what kinds of costs and what kinds of benefits?  Matthew Yglesias perhaps exemplifies the skeptical view following the Christmas attack, in a post titled “Not So Scary ‘Terror’”:

Obviously, people shouldn’t be lighting anything on fire inside airplanes. That said, all the big Christmas airline incident really shows to me is how little punch our dread terrorist adversaries really pack. Once again, this seems like a pretty unserious plot. And even if you did manage to blow up an airplane in mid-air, that would be both a very serious crime and a great tragedy, but hardly a first-order national security threat. [Edited out Peter King quote.] ...

Ultimately, it does no favors to anyone to blow this sort of thing out of proportion. The United States could not, of course, be “devastated” by anything resembling this scheme. We ought to be clear on that fact. We want to send the message around the world that this sort of vile attempt to slaughter innocent people is not, at the end of the day, anything resembling a serious challenge to American power. It’s attempted murder, it’s wrong, we should try to stop it, but it’s really not much more than that.

I don’t think this is right, for a number of reasons, starting with thinking that it is not the right way to approach cost-benefit analysis — more exactly, what one should count as categories of costs and benefits to weigh against each other.  I’ve elsewhere partly explained my views on how cost benefit analysis requires a prior view of “plausible” comparisons, arguing that skeptics like John Mueller are making “inapposite” comparisons.  But I’m interested to know what VC commenters think is the right way to approach this; I think that “plausibility” and “appositeness” of comparisons matter, and in fact form an often-covert base of assumptions in applying cost-benefit analysis, whether to skeptical or non-skeptical ends.

So let me ask.  What is right or wrong with this skeptical approach to such things as airline security on the grounds, for example, that the ride to the airport is more dangerous, or that one’s chances of getting struck by lightning are higher than getting killed by terrorism, or that even if you did manage to blow up a plane, it is not a first-order national security threat?

Let me be very clear on the question.  I am not asking your views on airport security, terrorism, Matthew Yglesias, or such things, not directly.  I am asking readers to say what is right or wrong about cost benefit analysis used in these ways — and more particularly, is it okay or not to include all of these kinds of considerations as the “frame” for costs and benefits?  The skepticism assumes that a wide range of things can be included as points of comparison — is this right, and if not, why not?  And if not, what are the limits, if any?  No rants, please, and confine responses to the methodological question about CBA and its underlying assumptions.

The Reason Foundation’s Robert Poole argues that if we are serious about airline security, we need to alter our focus.  He argues we spend too much time and effort “keeping bad things—as opposed to bad people—off of airplanes.”  A risk-based approach would invert these priorities and concentrate efforts on identifying higher risk passengers for greater screening.  He writes:

As a libertarian, I agree that we should be very leery of forbidding people to fly without good reason. But requiring potentially high-risk travelers to undergo secondary screening (especially since we do some of this randomly, in any case) is hardly the end of the world.

In fact, shifting to a risk-based approach to aviation security would likely mean increased security and lower costs, both for the TSA and especially lower wasted-time costs for most travelers.

Perhaps the TSA’s announcement that international travelers from selected countries will receive heightened screening indicates we are beginning to move in this direction.  I hope so.