The Volokh Conspiracy

I agree with most of what co-blogger Jonathan Adler says about Cato Chairman Bob Levy’s recent statement on the conflict between the Kochs and the Cato Institute. It is, overall, a persuasive document and much more detailed than Charles Koch’s earlier defense of the Koch position.

As I have said from the beginning, the best and easiest solution to this problem would be for the Kochs to drop their lawsuit. Regardless of whether their suit is legally meritorious (which is not clear), it is likely to do far more harm to the cause of libertarianism than good. Even if the Kochs win, and even if they have a good plan for the future of Cato, the new Institute is likely to lose much of its credibility, and many of its top scholars and analysts might well depart. The Kochs would end up acquiring an asset that has lost much of its value. If the Kochs aren’t willing to drop their suit, they can at least reduce the likely damage by announcing a credible slate of independent, libertarian board members whom they would appoint to the Cato board should they win.

I recognize that the Kochs genuinely believe that their legal rights have been violated and that Cato’s leadership has acted badly. Even if they are completely right about this, this is one of those cases where the best course of action is to forego asserting one’s legal rights.

For now, the legal and public relations war between Cato and the Kochs seems likely to continue. Unfortunately, both sides could end up losers. Cato because the lawsuit is a distraction from their work and contributors are less likely to give money to the Institute while its future is in the air; the Kochs because this confrontation is a public relations setback for them, and because it is more and more evident that they are unlikely to gain much from it even if they win.

Like Jonathan, I probably will not post again on this topic unless and until there are some new developments.

As regular readers know, I’m very interested in the new practice some magistrate judges have adopted of conditioning computer warrants on ex ante restrictions that they themselves create and attempt to impose on law enforcement. A district judge recently decided a new case on the role of the restrictions that in my view demonstrates why such restrictions are troubling. The case is United States v. Salceda, decided on February 27 by Judge Snyder of the Central District of California.

First, a brief background on those who are unfamiliar with the practice. (If you want more details, read my recent article Ex Ante Regulation of Computer Search and Seizure.) Imagine the government wants to conduct a search, and they apply for a warrant. Traditionally, the role of magistrate judges has been to review the warrants applications for probable cause and particularity, as the text of the Fourth Amendment requires. If the warrant application establishes probable cause and satisfies the particularity requirement, the judge must issue the warrant. In the last few years, however, some magistrate judges have taken on a new role. These judges worry that computer searches are more invasive than traditional searches. They also don’t trust the process of litigating the constitutionality of computer warrant searches after-the-fact. As a result, they have begun conditioning the issuance of computer warrants on special conditions that they devise.

For example, a judge might say that he won’t allow the warrant unless the government agrees to not use any evidence discovered in plain view. Or the judge won’t allow the government to have the warrant unless the government agrees to search a computer a particular way. The basic idea is to use the magistrate judge’s power to issue or deny the warrant ex ante to try to regulate what happens later, with each magistrate judge free to impose whatever restrictions he or she wants (beyond probable cause and particularity) to try to ensure that the resulting search won’t be too broad. Most magistrate judges have not imposed these new restrictions, but a number have. The lawfulness of imposing such restrictions currently remains uncertain. The Vermont Supreme Court heard argument nine months ago on what likely will be the first appellate case to directly consider the lawfulness of the practice, but no decision has been handed down yet.

That brings us to the Salceda case. The police had probable cause to believe that Salceda had child pornography on his home computer. They asked for a warrant to enter Salceda’s home, seize his computer, and look for evidence. Magistrate Judge Parada agreed that the government had established probable cause and particularity, but then decided to impose conditions on the warrant. Specifically, Magistrate Judge Parada decided to impose a condition designed to deal with the fact that the police can’t know what is inside a computer when they execute the initial search at the suspect’s home, and therefore for practical reasons have to seize each computer they find and search it back at the lab to see if it has the evidence sought. Appellate precedent has allowed this initial seizure on grounds that such a practice is reasonable. But the magistrate judge imposed a condition that law enforcmeent had to conduct an initial search back at the lab within 60 days of seizing each device to determine if the device had evidence described in the warrant. The warrant then included the following instruction:

If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.

In Salceda, the government seized the suspect’s computer, searched it in the initial 60 day period, and found lots of child pornography on it. The agents then put the computer aside. Almost two years later, as the case picked up again, the agents decided that they wanted to search the computer a second to find the rest of the child pornography on it. But at this point the agenta ran into a problem: Judge Parada’s warrant restriction wasn’t clear about whether they could do this. The warrant said that they could “retain the digital evidence for further analysis,” but it’s not clear if that meant that they could search the computer again or merely hold on to it or analyze files already searched.

The police applied for a second warrant to search the rest of the computer based on the evidence of the child pornography already discovered during the first search. As far as I can tell, the request for the second warrant was submitted to the duty judge, who happened to be a different judge. The second judge, Judge Zarefsky, told the investigators to go ask Judge Parada to clarify what the search restriction was intended to do instead of obtaining a second warrant, and denied the second warrant application.. The agents decided instead to search the computer again based on the first warrant, taking the view that the restriction allowed the agents to conduct “further analysis” such as searching the computer. The second search of the computer discovered more child pornography. The defendant then moved to suppress the extra child pornography discovered during the second search.

Held: The extra child pornography must be suppressed. Here’s the analysis:

The Court finds that any evidence discovered during the September and October 2011 forensic searches is inadmissible. The original warrant’s “further analysis” language is ambiguous as to whether it permits the government to analyze defendant’s digital devices for additional evidence of contraband, or whether it merely permits additional analysis of previously discovered contraband. Given this ambiguity, suppression of the evidence is appropriate. See Transfiguracion, 442 F.3d at 1228 (construing ambiguities in plea agreements in favor of a defendant because the government, as drafter of the agreement, bears the “responsibility for any lack of clarity”) (internal quotation marks and citation omitted); Wilhelm, 425 F.3d at 463 (finding fourth amendment violation because officer “recognized the warrant as ambiguous before the execution of the warrant, but failed to immediately stop execution and seek the necessary clarification of a warrant in order to make certain the warrant particularly described the place to be searched. . . .”). The Court’s decision is informed by the fact that the government sought–and was denied–a new warrant from Judge Zarefsky, and thereafter sought ex parte relief from this Court before conducting the subsequent searches. At the very least, the government’s conduct demonstrates its acknowledgment that the “further analysis” language is ambiguous. In denying the government’s ex parte application, the Court directed the government to seek clarification from the issuing judge to cure any ambiguities. Because the government chose to proceed with the searches without clarification or without securing a new search warrant, that evidence must be suppressed. See Wilhelm, 425 F.3d at 463.

Salceda is premised on the wrong analysis, I think. The Fourth Amendment requires reasonableness, and the Supreme Court and circuit courts have created a doctrinal structure for what reasonableness means and when unreasonable searches justify an exclusionary remedy. In my view, it is improper for magistrate judges and district court judges to simply ignore that binding appellate caselaw and replace it with an inquiry into whether agents properly followed a particular magistrate judge’s ex ante restrictions. In Salceda, the court seems to envision the warrant as some sort of contract between the government and the magistrate judge. She then asks if the agents lived up to their end of the deal, without ever considering any actual Fourth Amendment principles. But that’s just wrong, in my view. Warrants are not contracts, in which judges get to strike deals with investigators about what investigators can do. The Fourth Amendment requires reasonableness, and that allows investigators to do some things and not others. Reasonableness is up to the appellate caselaw, not individual magistrate judges with particular preferences.

The important Supreme Court precedent here is Richards v. Wisconsin, 520 U.S. 385 (1997). In Richards, a magistrate judge refused to allow agents to execute a warrant without first knocking and announcing their presence. The agents did so anyway. The defendant moved to suppress the evidence on the ground that the search was unlawful because it violated the magistrate’s express condition of granting it. The Supreme Court disagreed in a unanimous decision by Justice Stevens:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

In my view, that’s the right way to analyze Salceda, too. The issue should be whether the search was reasonable, and if not, whether the exclusionary rule should apply. The details of whether the agents did or did not follow the search restriction — and how that ambiguous search restriction should be interpreted — should be irrelevant because it is not relevant to the reasonableness of the search itself.

are up on USN’s website a bit early.  I’ve grown weary of all the hoopla around U.S. News, but here they are for what there worth.  The one thing that stands out is that Arizona State somehow managed to propel itself to number 26. Comment away.  Please keep in mind, though, that US News ranking should at most be a guide to the general reputation of law schools, with a significant margin of error.  For the vast majority of prospective law students, the most important criteria to narrow down law school choice should be where you want to practice, followed by how much debt you are willing to take on.  And I’ll repeat the advice I’ve given before: incoming students’ LSAT scores, reflecting an objective indication of the decisions of tens of thousands of law students, is the best overall indication of how desirable a law school is.  But individual circumstances vary, and, for example (to choose a random example), a student who can’t stand smallish towns and wants to live in the San Diego area after graduation is almost certainly better off going to USD than to, say, Indiana University.

The Fordham Urban Law Journal City Square website has posted a debate between NYU Professor Roderick Hills and myself on the the New York Court of Appeals controversial decisions upholding “blight” condemnations in the Atlantic Yards and Columbia University cases. In my 2011 symposium article “Let there Be Blight,” I argued that these takings violated both the New York state and federal constitutions. I especially emphasized the incompability between the court’s decision defining blight so broadly that virtually any area could qualify with the New York state constitutional provision limiting blight condemnations to “substandard and unsanitary areas.” Hills has written a critique of my analysis. My reply is available here.

Hills is one of the leading property and federalism scholars out there, and I always learn from our exchanges. As I explain near the end of my reply, in this case there may be more areas of agreement between us than initially meet the eye.

We had a glitch that kept people from posting using AOL, Hotmail, and Yahoo (all of which make it easy to post pseudonymously) — sorry about that — but that’s been fixed.

The opinion (Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does (N.D. Cal. Mar. 8, 2012)) also in the process rules — correctly, I think — that signing one’s video “Vote Ron Paul” doesn’t violate federal trademark law, because it’s not a “commercial use”:

Plaintiff argues that it has met the Lanham Act’s commercial use requirement for two reasons: (1) Defendants used a Twitter account to post the video on YouTube and both of these websites are commercial in nature; and (2) the video was intended to frustrate Plaintiff’s fundraising efforts and increase the amount of money contributed to Presidential nominees other than Ron Paul.

The first reason is meritless. Plaintiff essentially argues that any individual who uses a commercial website — whether it is to post a video on YouTube or send an e-mail through Gmail — has automatically satisfied the commercial use requirement under the Lanham Act. While it is true that the websites for both Twitter and YouTube may have commercial purposes, it is Defendants’ conduct that is at issue here. And it is this conduct that in some way must be connected to the sale of goods and services for the Lanham Act to apply. Accordingly, Plaintiff’s first reason does not persuade the Court that Defendants’ own use of Plaintiff’s trademark was in a “commercial or competitive context.” See Stanislaus Custodial Deputy Sheriffs’ Ass’n v. Deputy Sheriff’s Ass’n of Stanislaus Cnty., 2010 WL 843131, at *7 (N.D. Cal. Mar. 10, 2010).

Plaintiff’s second reason requires a closer analysis. The Court agrees with Plaintiff that Bosley [a Ninth Circuit precedent] does not directly address the question of whether an individual who improperly uses the trademarked name of another politician to express an opinion has done so in a commercial context that satisfies the requirements of the Lanham Act. But Bosley does explain that “[T]rademark infringement protects only against mistaken purchasing decisions and not against confusion generally.” Bosley goes on to stress that the “appropriate inquiry is whether [the defendant] offers competing services to the public.” See also Stanislaus, 2010 WL 843131, at *6 (analyzing Bosley and other cases to find that “if an actual sale of goods is not involved, the infringer must be engaged in some form of commercial competition”). The District Court in Utah summarized the Tenth Circuit’s view on this issue as follows:

In our view, the defendant in a trademark infringement and unfair competition case must use the mark in connection with the goods and services of a competing producer, not merely to make a comment on the trademark owner’s goods and services …. Unless there is a competing good or service labeled or associated with the plaintiff’s trademark, the concerns of the Lanham Act are not invoked.

Koch Indus., Inc. v. Does, 2011 WL 1775765, at *3 (D. Utah May 9, 2011) (citing Utah Lighthouse Ministry v. F.A.I.R., 527 F.3d 1045, 1054 (10th Cir. 2008). In Koch, the defendants created a website that impersonated the plaintiff’s company website, and then issued a press release that contained a political message and was designed to appear as coming from the plaintiff. The Koch Court dismissed the plaintiff’s Lanham Act claims for failing to meet the commercial use requirement, explaining that the defendants’ “press release and fake website did not relate to any goods or services and were only political in nature.” Koch specifically rejected the plaintiff’s theory that the defendants issued the press release to attract more contributions to their activities since the defendants never even identified themselves in their press release or fake website.

While Koch is not exactly analogous to this matter, it — as well as other decisions in the Ninth Circuit — establish that a critical issue in this analysis is whether the trademark infringer is alleged to have offered any competing services. Plaintiff does not address this issue in its amended ex parte application. And the Court’s review of the video shows that Defendants did not identify themselves as a competing organization and did not solicit any contributions. More importantly, and why Plaintiff’s request for expedited discovery is denied, the complaint does not contain any allegations that Defendants released the video to compete with Plaintiff.

Paul Alan Levy (Public Citizen) has more on the subject; Public Citizen was the lawyer for the defendants.

Jason Kuznicki and Timothy Sandefur have written responses to my post critiquing Kuznicki’s earlier statement that the idea of legal secession is a “category error.”

Kuznicki writes:

Of course, it’s indisputably true that some secessions are authorized by some countries’ constitutions. Others, however, are not. Within these two types of cases, authorized and unauthorized, we can also imagine specific acts of secession that we find ethically justified or ethically unjustified.

That a given constitution forbids secession does not in my view mean that all secessions from it are necessarily unjustified. It means only that we have to justify them through extraconstitutional means, and these means must in themselves be weighty enough to also justify overthrowing the existing legal order.

Similarly, that a given constitution allows secession does not in my view automatically justify all secessions carried out under it. We may still find some of them ill-advised or even unjustified. There’s nothing about constitutional law that says that where the law permits a thing, the conscience has to be silent.

I agree with all of the above. But I think it is in some tension with Kuznicki’s previous comment on the subject, which claimed that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.” Kuznicki’s most recent post, by contrast, suggests that such justifications are not category errors at all, though sometimes they may be wrong for other reasons. However, we all sometimes make off-the-cuff statements (or, in this, case twitter posts) that don’t fully reflect our considered views. I know I have done it, so I can hardly blame Kuznicki for doing so.

I have more disagreements with Sandefur’s post:

Jason Kuznicki and Ilya Somin make the critical error of mistaking “secession” for “revolution.” Revolution means to overthrow a political and legal order, while secession is a legal theory—it is the theory that for a state to leave the union is itself within the legal order. It is therefore literally incorrect to say that secession is the “attempt to step outside the legal order.” That’s revolution. The American Revolution was not an attempt at secession—note that the word was virtually never used by the Revolutionary leaders. On the contrary, the term secession came into use in the decades before the Civil War as an attempt to justify a (pseudo-)revolutionary act within the legal order.

As I explained in this post, secession and revolution are not mutually exclusive categories. At least as used in contemporary English, secession is used to denote any effort to split off part of a state’s territory and form a new nation, whether legally or not. Some secessions also qualify as revolutions, in the sense that they seek to establish a political regime very different from that which existed before. The American Revolution was an example of revolutionary secession. By contrast, some secession movements are not revolutionary in this sense (e.g. – today’s secession movements in Scotland and Quebec, which seek to establish parliamentary democracies only modestly different from those that presently exist in Canada and the UK). It is true that the American Founders did not use the term “secession” in the 1770s. But that’s because it had not been invented yet, not because it isn’t an accurate description of (part of) their agenda.

Sandefur is also far more certain than I am that secession was illegal under the US Constitution as of 1861, arguing that “many of [the Constitution's] pre-1865 provisions—from the Guarantee Clause to the Privileges And Immunities Clause—were absolutely incompatible with secession, and the subsequent amendments are even moreso.” This may be true, but I am not so sure. The Guarantee Clause and Privileges and Immunities Clause impose various obligations on “states” that the federal government can enforce. However, if states have a right to secede, they would no longer be “states” of the American Union after such as secession has occurred. At that point, the Constitution – and the federal government’s power to enforce its provisions – would no longer apply to it. The clauses Sandefur mentions are plausibly interpreted as applying to all states in the Union, for so long as they remain part of it, but not if they secede. Imagine an Alcoholics Anonymous chapter that has a clause in its charter giving the organization the authority to guarantee that the members never drink alcoholic beverages. Does such a clause necessarily mean that members are forbidden to leave AA (and therefore no longer be subject to this clause)?

I don’t think any of the above proves that secession is constitutionally permissible. It only demonstrates that the issue is a closer call than many suppose.

Sandefur also suggests that, if secession is legal, it requires no additional justification:

[I]f the law allows secession, then no more justification is required—just as a person wanting to sell his car requires no further justification than that he wants to and it belongs to him. If secession is a legal right, no further rationale is required (at least, vis-a-vis the federal union). But if secession is not legal—that is when further justification is required (and in the case of 1861, is lacking). Only if it is a law-breaking act do we get to the question of whether it is nevertheless justified in some moral sense.

I think this is wrong. Many legal activities might also be immoral or unjust. Slavery was legal in many states until 1865, but it was still an evil, and people still had a moral obligation not to become slaveowners. Similarly, secession for the purpose of protecting slavery was evil even if it was legal under the Constitution.

UPDATE: Timothy Sandefur responds in an update to his original post:

[O]bviously I do not deny that “[m]any legal activities might also be immoral or unjust,” and that secession for the purpose of perpetuating slavery was both. Of course that is true. (That’s why I added the qualifier “vis-a-vis the federal union.”) My point is that if secession were legally valid, then the state would have the legal authority to secede regardless of its rightness or wrongness, just as one has a legal right to do immoral things. But it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant: because it is then incumbent upon a “seceding” state to justify such an act as an act of revolution (which can justify illegal acts in some cases). That route, however, is not open to the Confederacy, due to the immorality of its acts.

I think there is an internal contradiction here. Sandefur recognizes that “[m]any legal activities might also be immoral or unjust,” but also argues that “it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant.” Actually, it would be relevant even in the case of a legal secession, because some legal actions “might also be immoral or unjust.”

Sandefur also makes the following point:

[I]t’s important to reiterate that the U.S. Constitution’s system of divided sovereignty is in no sense analogous to Alcoholics Anonymous: the states are not “members” of the federal government in the way that people are members of A.A. Indeed, the states are not, properly speaking, “members” at all…. A closer analogy would be if A.A. purported to absolve its members of membership in the AAA. It would have no standing to do so, and any attempt to do so would violate the contractual rights of the members in question.

My use of the AA analogy was only for the limited purpose of showing that an organization can have rules that impose restrictions on members while they remain members, but do not apply if the members choose to leave the group. The Guarantee Clause, Privileges and Immunities Clause, and other parts of the Constitution imposing restrictions on the states can be interpreted as rules of this type. As to the states not being “members” of the Union, I think it’s fairly clear that they are. It is after all, called the United States of America, which implies a federal union composed of members that are states. This, of course, does not settle the question of whether and under what conditions the members are entitled to leave the Union. But my purpose was not to show that there clearly is a right of secession under the Constitution, but merely to demonstrate that the idea of such a right is more plausible than critics imagine.

As many of you have noticed, over the past several months we’ve been dealing with server load problems, comment posting glitches, and comment functionality problems (such as the lost ability to edit comments). These have been related, since optimizing comment functionality seems to have lead to untenable server loads, and optimizing server load has led to comment problems.

On the advice of our technical people, we’re therefore moving comments off-server, to the Facebook commenting system used by sites such as the L.A. Times, TechCrunch, Power Line, and others. This should let us provide more usable comments without service brownouts or long page load delays.

Note that you will still be able to post anonymously (or pseudonymously), simply by using an AOL, Yahoo, or Hotmail account, or indeed from your Facebook account, if your Facebook account is pseudonymous. You should also be able to easily delete your own comments; and comments will also be nested into threads, you’ll see the comments of people you’re friends with at the top, and you will be able to notify friends via your Facebook wall if you’ve commented on a VC post. And we’ll be better able to do housekeeping, such as deleting duplicate comments, and deleting the rare comments that violate our posting guidelines.

To use the commenting feature, just go to the comment page, as you have before. You will then see either (1) a box for your comment text, in case you are already logged in to your Facebook, AOL, Yahoo, or Hotmail account, or (2) a login prompt, if you aren’t yet logged in. And if you are logged on to your Facebook account, but don’t want to post using that account, you can easily just click on “Not you” (in the “Posting as YourName (Not you?)” line).

Old comments to old posts will still be visible, as before. Posts that were open for comments before the changeover will have the legacy comment threads still readable.

We think this should be the optimal solution for everyone -– for those who just read the posts, and thus need to avoid brownouts; for those who want to comment under their own names; for those who want to comment pseudonymously; and for us, since we’ll be able to more easily manage comments. Please bear with us for the next few hours, as the conversion takes place, and for the next few days, as any glitches are ironed out.

Just wanted to let any VC readers who might be interested in studying in Rome this summer about our Temple Law program – I’m particularly excited about this summer’s program, as I’m going to be teaching a new course of “Rome, the Roman Republic, and the Constitution” and I think it’s going to be really quite interesting.  [I know the flyer says that the deadline has passed, but I think they're still accepting applications ...]

Virginia Postrel suggests an easy way to expand access to contraception without risking any imposition on religious institutions: Make oral contraceptives available without a prescription.

True, making the pill available over the counter could reduce the amount of outrage and invective available for entertaining radio audiences, spurring political fundraising and otherwise amusing the American public. But the medical risks are quite low.

Partly because birth-control pills are available only by prescription, people tend to think they’re more dangerous and less well understood than they actually are. In fact, “more is known about the safety of oral contraceptives than has been known about any other drug in the history of medicine,” declared an editorial in the American Journal of Public Health back in 1993. That editorial accompanied an article arguing for over-the-counter sales.

Unlike most medications, the article noted, birth-control pills require no medical diagnosis: “A woman herself determines her need for oral contraception; she assesses her own risk of pregnancy … and the costs and benefits of both pregnancy and alternative contraceptions.” Nearly two decades later, birth- control pills look even safer than they did then, and recent research indicates that women are both able and eager to manage their own purchase decisions.

This approach won’t satisfy those who want others to pay for their contraception, nor will it please those who believe the widespread availability of contraception is a cause of cultural decay.  For the rest of us, however, this would seem like a reasonable way to make it cheaper and more convenient for those who wish to use oral contraception to obtain it without any risk of imposing on the religious  beliefs of those who believe contraception to be immoral — and for these reasons the likelihood of such a policy being adopted is small.

I had not planned to post more on the Koch-Cato kerfuffle, barring meaningful developments.  This morning, however, I received notice of a statement by Cato Institute Chairman Bob Levy responding to the statement by Charles Koch released last week.  It is a lengthy and powerful reply that goes far beyond his interview with Skip Oliva.  It is filled with detail about key events and other verifiable facts.  This is the sort of information necessary to evaluate the competing claims about each side’s actions and intent, and is the sort of information that was conspicuously absent from the Koch statement.  Levy’s statement, assuming it accurately recounts events, also makes a compelling case that the Kochs are after control of Cato above all else. Nothing I have yet seen from the Kochs or their representatives (on-the-record or otherwise) demonstrates otherwise, though I will try to keep an open mind on this point.

As before, I will update this post with any updates or substantive responses I come across.

UPDATE: Skip Oliva catches Cato conspicuously revising the text on its lawsuit website.

[UPDATE: Marcia Oddi (Indiana Law Blog) reports that the Indiana Attorney General has withdrawn the state's attempt to block the newspaper from running the article, so the order that it be removed is presumably being vacated by the court, and the article will presumably be reposted again shortly. I don't know if the newspaper agreed to any redactions from its article in order to get the state to do this. Thanks to Jordan Stover and Ashby Beal for the pointer.]

From the South Bend Tribune:

The Indiana Court of Appeals granted a request Friday that prevents The Tribune from publishing records the newspaper obtained from the Department of Child Services.

The appeals court’s ruling came three days after a local judge ordered the release of phone records from DCS’s child abuse hotline related to 10-year-old Tramelle Sturgis and his family …. The records include four audio recordings of hotline calls and accompanying transcripts related to Tramelle, who was found tortured and killed in his home Nov. 4.

But an hour after The Tribune published a story on its website Friday that described one of the phone calls and raised related issues, the appeals court granted the emergency stay DCS requested to prevent The Tribune from publishing the material.

On advice from its attorney, The Tribune removed the story from its website and is forced to refrain from publishing information about the content of the calls. If it does otherwise, the newspaper could be held in contempt of court….

At [the earlier] hearing before St. Joseph Probate Court Judge Peter Nemeth [which led to the release of the records], DCS attorneys … stated that releasing the audio of the calls and the transcripts to the newspaper would jeopardize confidentiality promised to those who report child abuse and have a “chilling effect.” …

This strikes me as an unconstitutional prior restraint, even if it is supposed to be just a temporary stay pending further review. The Pentagon Papers case (1971) held that even a temporary injunction can’t be justified in order to prevent publication of documents, even when the documents were improperly leaked and even when they assertedly threaten to harm national security; this suggests that this injunction is unconstitutional as well, even if publication of such documents could in the long run deter some people from reporting child abuse. And Florida Star v. B.J.F. (1989) held unconstitutional a statute that banned publishing the names of rape victims, despite the argument that the statute helped encourage rape victims to call the police; the newspaper was held to have a First Amendment right to publish information that had been released by a government official, even if the official acted contrary to government policy in releasing that information. This similarly suggests that the South Bend Tribune has a right to publish the information that had been released to it pursuant to a court order, even if the court order mandating the release is later found to have been issued in error.

I therefore expect the injunction to be reversed, and, I hope, very soon. If anyone has more information on the case, such as the text of the court of appeals order (if it’s anything other than a one-line and unexplained “stay granted”), please do pass it along. Thanks to Ken Fowler for the pointer.

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because informal social pressure did so much work in preventing and responding to lawbreaking, there was less need for professional state intervention and coercion. Because the moral consensus emphasized that everyone was weak and fallen, there was more understanding and brotherly love to moderate criminal punishments.

And because morals crimes cut across the social spectrum, criminal justice didn’t create a discrete criminal underclass; everyone could occasionally stumble. People paid their dues, were forgiven, and could reenter society with a clean slate and rise to high office and social station. There was no gulf between the governors and the governed, the law-abiding and the lawless.

It’s also extremely significant that colonial justice was the business of amateurs: laymen, not lawyers. Ordinary white men took turns serving as night watchmen and constables, and when victims shouted out a hue and cry all the neighbors were supposed to rise up to help catch the perpetrator.

Criminal cases were decided by local juries, who applied their common-sense notions of right and wrong to decide who was factually guilty and morally blameworthy. At first there were no American law books or law schools, and very few lawyers overall. Thus, even the judges had little training, and many if not most cases were prosecuted by victims pro se (without lawyers) and defended by defendants pro se, each telling his side of the story.

The lack of professionalization certainly had its downsides; for example, it left amateur night watchmen poorly equipped to deal with dangerous professional criminals. But it also meant that trials were straightforward contests about who had done what and who deserved what punishment.

There were no lawyers to generate and argue over technical rules of evidence and procedure, nor to draw out pretrial motions and post-trial appeals. The side issues that today distract from factual and moral guilt, such as Miranda warnings, the exclusionary rule, and the intricate hearsay rules, were far off in the future.

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

So, with apologies to professional legal historians for oversimplifying, that’s a rough snapshot of what colonial American criminal justice looked like. Tomorrow I’ll explain the dramatic changes it underwent over the nineteenth and twentieth centuries.

Daylight savings time began this weekend.  The daylight savings period is longer than it used to be.   The Energy Policy Act of 2005 made daylight savings time start a few weeks earlier and end a week later.  It now starts in March and ends in November, meaning we’re on daylight savings time for over seven months.  Is it worth it?  Ask me when I’ve adjusted.  In the meantime, the Los Angeles Times has a short story about the controversy over daylight savings time and those who seek to abolish it.

I’m delighted to report that Prof. Stephanos Bibas of the University of Pennsylvania Law School will be guest-blogging here this coming week about his new book, The Machinery of Criminal Justice. Prof. Bibas has clerked both on the court of appeals and the U.S. Supreme Court, worked as a federal criminal prosecutor, and written extensively about many aspects of criminal law and criminal procedure; here’s the publisher’s summary of his new book:

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers’ and laymen’s incentives, interests, values, and powers.

In The Machinery of Criminal Justice, author Stephanos Bibas surveys these developments over the last two centuries, considers what we have lost in our quest for efficient punishment, and suggests ways to include victims, defendants, and the public once again. These ideas range from requiring convicts to work or serve in the military, to moving power from prosecutors to restorative sentencing juries. Bibas argues that doing so might cost more, but it would better serve criminal procedure’s interests in denouncing crime, vindicating victims, reforming wrongdoers, and healing the relationships torn by crime.

At the Reason website, Kennedy (who apparently has only one name), argues at length that atheism should be considered a religion:

[W]hether you make sense of the world as an atheist and don’t require the God postulate to complete your understanding, or you are a theist and your feelings and experiences tell you something greater is there, biologically speaking, that big blob of gray Jell-O in our skulls is like a giant arrow pointing us in the same direction. I believe that is delicious. And religious….

I contend that if your system is about God—or about the non-existence of God—God is still at the center of the argument’s “aboutness.” In the spirit of that “off is a TV channel” comment above: God is the TV. Religions are the channels. If it is off, maybe he’s dead or disengaged, but at least you admit there’s a TV….

When atheists rail against theists (as many did on my Facebook page), they are using the same fervor the religious use when making their claims against a secular society. By calling atheism a religion, I am not trying to craft terms or apply them out of convenience. I just see theists and atheists behaving in the same manner, approaching from opposite ends of the runway.

These kinds of claims are often made, but they fall apart under close inspection. Obviously, if you define the term “religion” broadly enough, atheism can qualify. But such a redefinition obfuscates important differences between atheism and religion, and is also contrary to ordinary English usage.

Kennedy argues that atheism is like religion because both atheists and theists 1) try to understand the nature of the world, 2) have beliefs about God, and 3) are often emotional about their beliefs and intolerant of opposing views. All of these points are true, but none of them prove that atheism is a religion.

It is true that both atheists and theists try to understand the world. But only the latter are committed to a religious explanation for reality, which depends on the actions of supernatural beings. The former, by contrast, can try to explain reality by natural, scientifically verifiable causes. There is an important distinction between a naturalistic worldview and one that incorporates an important role for supernatural beings.

Moreover, atheism as such is not an explanation for the nature of the world akin to various religions who explain reality by reference to God (or multiple gods). Atheism is merely a rejection of the existence of supernatural gods, which does not preclude atheists from disagreeing among themselves about the fundamental nature of reality (e.g. – some atheists are materialists, whereas others are not; some atheists even reject the genetic theory of evolution, as the officially atheistic Soviet government did for many years).

It is also true that both atheists and theists have beliefs about God. However, if believing there is no God makes you religious, then disbelieving in ghosts makes you a believer in the existence of the afterlife and disbelief in phrenology makes you a phrenologist. Both phrenologists and anti-phrenologists have beliefs about the question of whether or not feeling the shape of a person’s skull tell you something useful about their personality. Similarly, both atheists and theists have beliefs about the existence of God. I am not suggesting that all theistic beliefs are as easily falsified as phrenology (some probably are, while others are not). But rejection of theism does not make you a religious believer, just as rejection of phrenology does not make you a phrenologist.

Finally, it is certainly true some atheists get emotional about their beliefs and are intolerant of opposing views – as is also the case with some theists. But emotionalism and intolerance are not enough to qualify a belief system as a religion. If they were, then conservatism, liberalism, Marxism, libertarianism, vegetarianism, environmentalism, and many, many other views all qualify as religions too. Many of their adherents are also emotional about their beliefs, and intolerant of opposition. The same goes for many sports fans. Some North Carolina basketball fans are very emotional about their team and famously hostile to Duke fans, and vice versa. Yet being a UNC basketball fan is not a religion, except perhaps in a metaphorical sense.

To be sure, we sometimes refer to adherents of some political or moral view as having a “religious” fervor. But this is a metaphorical use of the term “religious,” not a literal one. We don’t really mean that a person with a “religious” dedication to vegetarianism is necessarily actually religious. We just mean that he has as strong a faith in his beliefs as many religious people do in God and their theological commitments.

Perhaps these terminological battles don’t matter very much. So long as we all use terms in the same way and everyone understands what they mean, it may not matter whether we define religion broadly or narrowly. However, I do worry that efforts to define atheism as a religion may obscure the genuine and important difference between atheists and religious believers: that the one view explains reality (and often morality) by reference to supernatural beings, whereas the other does not.

and Ainsley!

As part of the ongoing discussion of libertarian views on the Civil War and secession, Jason Kuznicki of Cato and David Drumm of the Jonathan Turley blog have argued, in Kuznicki’s words, that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.”

I generally agree with Drumm’s and Kuznicki’s condemnation of libertarian defenses of Confederate secession. But I don’t think that legal secession is necessarily a “category error.” Like many other legal relationships – partnerships, clubs, corporations – a federal system of government can incorporate rules that provide for its own dissolution. For example, the Canadian Supreme Court has ruled that Canada’s Constitution allows Quebec to secede so long as the secessionists prevail in a referendum and negotiate certain issues with the rest of Canada. If Quebec does secede in the aftermath of a secessionist referendum victory, the resulting secession will be perfectly legal under Canadian law. There are other federal constitutions that explicitly provide for a right of secession. The most famous recent example is Article 72 of the Soviet Constitution, which numerous constituent republics seceded under in 1990-91.

The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is “perpetual.” While the Articles clearly banned secession, the Constitution is ambiguous on the subject.

Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal secession.

The case is Hammoud v. Hammoud (Mich. Ct. App. Mar. 8, 2012). An excerpt:

Defendant next contends that the award of spousal support was excessive and improperly imposed as a sanction for defendant’s refusal to grant plaintiff an Islamic divorce…. “The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished; spousal support is to be based on what is just and reasonable under the circumstances of the case.” The factors traditionally to be considered by a trial court in awarding spousal support include:

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.

… The trial court awarded plaintiff modifiable spousal support in the amount of $602 a month for a minimum of four years, with early termination upon the death or remarriage of plaintiff. The spousal support figure was based on the imputation of annual income of $14,616 to plaintiff. The trial court imposed the continuation of modifiable spousal support, in this amount, for an indefinite period unless terminated by plaintiff’s receipt of an Islamic divorce by defendant, her death or remarriage.

In awarding spousal support, “a judge’s role is to achieve equity, not to ‘punish’ one of the parties.” For the length of this marriage and given the disparity in the parties’ history of earning abilities, use of the spousal support prognosticator by the Friend of the Court indicated an appropriate case for short-term spousal support restricted to a period of “four and a half to five years.” Not only did the trial court exceed the recommended length of spousal support for this marriage, the implication of the trial court’s ruling is that it was indeed attempting to pressure defendant to grant plaintiff an Islamic divorce, despite the trial court’s acknowledgement that it had no authority or jurisdiction over the parties obtaining a religious divorce.

The trial court recognized that plaintiff was an intelligent and capable woman with a potential to earn monies now and into the future. Both the length of this marriage and plaintiff’s potential ability to earn an income contraindicate an award of permanent spousal support. While the award is designated as being modifiable in accordance with MCL 552.28, the implication that the ongoing award of spousal support was for an indefinite duration and was designed by the trial court to force or pressure defendant to agree to an Islamic divorce is improper….

While there is an argument for an award of rehabilitative spousal support in this matter, an award of permanent spousal support could result in defendant’s ongoing obligation to support plaintiff for more years than the marriage lasted. As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum. The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent. Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

This is in some respects a similar issue to the Jewish religious divorce (get) controversy, though it sounds like the Islamic rules are somewhat different from the Jewish ones. My view, for the reasons I mentioned as to the Jewish religious divorces, is that the trial court in this case was wrong and the court of appeals was right: Given the Establishment Clause, it should be no business of a secular court to try to pressure someone into performing a religious act.

As I mentioned in the earlier post, I recognize that the religious act (or the absence of the act) has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law.

Here’s Clinton speaking in Tunisia. Note that the questioner operates under the assumption that to be pro-Israel is to be against the “common Arab citizen,” and Clinton not only fails to challenge that assumption, but implies that rhetoric that pleases the “Zionist lobby” is somehow anti-Muslim.  She then suggests that Americans (and others) are fools if they take seriously anything said during campaign season [note that "our" in the title therefore refers to Americas' political class as a whole, not just (but not exclusive of) the Obama administration].

QUESTION: My name is Ivan. After the electoral campaign starts in the United States – it started some time ago – we noticed here in Tunisia that most of the candidates from the both sides run towards the Zionist lobbies to get their support in the States. And afterwards, once they are elected, they come to show their support for countries like Tunisia and Egypt for a common Tunisian or a common Arab citizen. How would you reassure and gain his trust again once given the fact that you are supporting his enemy as well at the same time?

SECRETARY CLINTON: Well, first, let me say you will learn as your democracy develops that a lot of things are said in political campaigns that should not bear a lot of attention. There are comments made that certainly don’t reflect the United States, don’t reflect our foreign policy, don’t reflect who we are as a people. I mean, if you go to the United States, you see mosques everywhere, you see Muslim Americans everywhere. That’s the fact. So I would not pay attention to the rhetoric.

Secondly, I would say watch what President Obama says and does. He’s our President. He represents all of the United States, and he will be reelected President, so I think that that will be a very clear signal to the entire world as to what our values are and what our President believes. So I think it’s a fair question because I know that – I sometimes am a little surprised that people around the world pay more attention to what is said in our political campaigns than most Americans, say, are paying attention. So I think you have to shut out some of the rhetoric and just focus on what we’re doing and what we stand for, and particularly what our President represents.

I’m sure Clinton didn’t mean it the way it came out, but it’s embarrassing nevertheless.  As Glenn Reynolds likes to say, the country is in the best of hands.

UPDATE: Several early commenters suggest that Clinton’s comments were directed at GOP rhetoric in this campaign season.  That makes sense [better put, it makes Clinton's comments more comprehensible], but the questioner wasn’t asking about what one commenter suggested was the GOP’s “belligerent” rhetoric. Rather, he was clearly asking about both sides‘ rhetoric–I’ve now highlighted the “both sides”  in the original question so it’s clear what the questioner was saying: every campaign season we see both Republican and Democratic candidates [including, obviously, Pres. Obama] appealing to pro-Israel constituencies,  and then when they get into office we see they aren’t as hostile to Arab individuals as we thought, even though they still support the Arabs’ “enemy”.  “Don’t believe what you hear in campaigns” isn’t even the beginning of an adequate answer to that.

FURTHER UPDATE: Some commenters are also insisting that Clinton’s comments are directed at GOP rhetoric on Iran.  I don’t see any indication in either the question or the answer that Iran is under discussion.  Moreover, Iranians are not Arabs–I’m sure Clinton is aware of this–and the questioner references only Arab countries (Tunisia and Egypt) and the “common Arab on the street.” Indeed, it’s kind of odd that Clinton segues into a discussion of Muslims in the U.S.; the questioner didn’t suggest that the U.S. is hostile to Muslims, but to Arabs because the U.S. supports Israel.  I’m guessing that Clinton had some talking points she wanted to express, and tried to awkwardly shoehorn them into an answer to a question they weren’t responsive to.  So awkwardly, in fact, that when she tried to circle back to answer the question she wound up saying “don’t pay attention to anything American politicians say during campaign season.”

FINAL UPDATE: Even for those inclined to read Clinton’s comments in what they think of as charitably–I’m not inclined to think it’s “charitable” to suggest that rather than simply misspeaking, she,  in her capacity as Secretary of State in a foreign country, was actually implicitly attacking Republicans, one of whom may be the president soon–she still failed to address various nefarious ideas embedded in the question, including the idea that Israel is an enemy of the “common Arab citizen”, that American support for Israel implies a hostility to Arabs, and that U.S. support for Israel, rhetorical or otherwise, reflects the power of “Zionist lobbies” as opposed to a widespread consensus among Americans. Indeed, she seemed to (but I doubt meant to) suggest that Obama administration policies are actually a lot less pro-Israel than that might appear at first glance.

I found this column quite interesting, even though I’m not religious and never dealt with this problem myself. (I suppose my interest in relations between the sexes is ecumenical.)

My sense is that some of the column’s observations reflect some of the problems with dating one’s coworkers or classmates, but it seems to me that there are also important differencesL The very fact that church is supposed to be a community for people with shared moral values, which seems to cut in favor of people trying to meet prospective spouses there, might well make it a more dangerous (or at least a differently dangerous) place to look for such prospective spouses. But I’d love to hear what readers who have had such experiences — or experiences with dating, or choosing not to date, at synagogue — have to say. Thanks to InstaPundit for the pointer.

UPDATE: I originally failed to link to the column; sorry about that.

From In re MF Global Holdings Ltd. (Bankr. S.D.N.Y. 2012):

Furgatch requests that these chapter 11 cases be administered for the benefit of the commodity customers of MFGI. Namely, Furgatch seeks an order from this Court that MFGH immediately pay “child support” payments. Such payments, in the case of individual debtors, are excepted from discharge pursuant to section 523(a)(5) of the Bankruptcy Code and given a first priority right of payment pursuant to section 507(a)(1)(A) of the Bankruptcy Code.

According to Furgatch’s counsel, “over the past fifty years, U.S. courts have consistently and aggressively broadened the scope of corporate personage and have afforded corporations more and more rights and obligations once reserved solely for individuals.” Movant cites 1 U.S.C. § 1, which defines “person” to include “corporations, companies, associations, firms, partnerships …, as well as individuals.” Additionally, the Motion draws language from a United States Supreme Court decision that conferred upon corporations the constitutional right to free speech. See Citizens United v. Federal Election Commission, 130 S.Ct. 867 (2010). The Motion also discusses the definition of the word “parent” as found in Merriam–Webster Dictionary Online and posits the derivation of the meaning of “parent company” in furtherance of the argument. The Motion concludes that corporations “must necessarily have a parent-childlike relationship,” and “[t]he parent company, which brings into existence and exerts control over the child subsidiary, should be subject to the same obligations for on-going support and welfare to which the parent-child relationship of natural persons is subject.”

The Motion quotes the language of sections 523(a)(5) and 507(a)(1)(A) of the Bankruptcy Code and asserts that these sections dictate that MFGH should “provide (i) immediate and full recovery” of customer funds, “or, in the alternative, (ii) first-ranking priority status in the recovery of [the Chapter 11 Debtors'] debt owed to commodities customers to the extent of their segregated accounts at MFGI.”

Furgatch’s Motion is procedurally improper and substantively meritless to the point of bordering on frivolous. Therefore, the Court denies the Motion in its entirety with prejudice and cautions Furgatch’s counsel that the Court has the power to impose sanctions for frivolous arguments….

Corporations are often treated by the law as “persons,” and for perfectly good reasons: For instance, it makes sense that corporations should be able to enter into contracts, sue and be sued, and even have protection under constitutional provisions such as the Free Speech Clause, the Free Exercise Clause, the Due Process Clause, and the Takings Clause. This is both practically useful for our legal and economic system to function effectively, and necessary to fully protect the constitutional rights of individuals. If you deprive a corporation of property without due process, you are wrong the corporation’s owners. (The court, incidentally, is mistaken in saying Citizens United “conferred upon corporations the constitutional right to free speech”; the Supreme Court has recognized that corporations have free speech rights at least since NLRB v. Virginia Electric & Power Co. (1941), only 10 years after the Court first struck down a law on free speech grounds. Citizens United simply involved the question whether those rights extend to speech about candidates the same way that they extend to speech about a vast range of other matters.)

But, as I’ve noted in the past, that the corporation-as-person metaphor makes sense in many situations doesn’t follow that the Cruel and Unusual Punishment Clause has any meaning as to corporations, which I don’t think can be punished in a way that we would see as “cruel” (unless someone persuades me that the Unusual Punishments component has some meaning as to corporations). An order dissolving a corporation should not require a jury to decide on the punishment using all the procedures the Court has developed in death penalty cases.

Neither does it follow that the Self-Incrimination Clause has any direct meaning as to corporations, which can’t actually be witnesses. Similarly, restrictions on corporate ownership of firearms should be constitutional or not depending on your views about whether the individual right to bear arms includes the right to associate with others in certain ways to do so. They shouldn’t turn on the neat but unsound syllogism that a corporation is a person, persons have the right to bear arms, and corporations therefore have the right to bear arms.

What is true of the metaphor of the “corporation” is even more true of the metaphor of the “parent corporation”: That the parent-child analogy might be illuminating in some ways doesn’t mean that we should have corporate “child support,” corporate custody disputes, or prosecutions for corporate incest. Never fall into the trap of actually believing that our legal fictions and our metaphors are real.

This paper, by University of Baltimore’s Richard W. Bourne, deserves wide attention.  I fear it won’t get it, however.  The Coming Crash in Legal Education: How We Got There, and Where We Go Now.  It is written in clear, plain, and personal language; it is factually well-informed about the roots of the impending economic crisis for law schools as well as conditions now; and Bourne has thought hard about the alternatives.  They are none of them happy and all sobering, unless, Bourne says, one happens to be sitting as a student or professor at one of the T-14 schools.  Here is the SSRN abstract:

This paper will first track the ways in which the legal services market has grown and changed over the past forty years. It will then track the major changes that have attended legal education during the same period and the increasing dependence of the legal education industry on student debt. The paper will then explore why, at long last, the boom-times may have run their course and why, at some point, painful changes will likely occur. Though they cannot be described in detail, the author will attempt to outline the likely nature of the changes that will occur. Finally, the paper will briefly explore how the predicted reckoning may yet lead to an improvement in the marketing of legal services and an enhanced role for law schools in preparing new attorneys for the new bar they will be joining.

He points out that although today’s entry level attorneys are not well-prepared for practice and this is a problem, the sorts of solutions that are proposed – more clinical education, particularly – are often prohibitively expensive.  One might produce better prepared attorneys, but that does not address either an oversupply or tuition prices leading to indebtedness that cannot be supported at the salaries that, even looking over the longer run, even the employed lawyers can support.  Something – several things – have to give.  One of them, he says, will be faculty-student ratios; and the drive for scholarship as the mission of the law school.

Although he hopes to see an undermining of the importance of the USNWR rankings, I don’t think he believes that the new metrics will actually do so.  It is true that USNWR rankings favor almost entirely increasing resources; it is, as he says, a proxy for  institutional wealth.  The rankings overwhelmingly take into account factors that raise the price of education; and of course they are pro cyclical.  That dominance is unlikely to end, however, in part because what employers seek at the end result of the process is, paradoxically, not the best trained junior lawyers – but the best talent.  Apart from a certain common core, taught pretty much by any school, employers do not so much differentiate by training as see school for as proxy for basic talent.

Employers don’t much care if I teach law and robots (which I don’t), because if they had to choose, talent over training, they choose talent, or at least their marker for perceiving it, any day over training.  That marker is irrespective of any big value-added from law school in other words. “Law school” adds a certain basic value in training lawyers, but that is actually about the same across schools, and what separates the schools is who walked in the door in the first place, as reflected in LSAT scores particularly.  I suspect most professors think the same way as the employers do, more so the more elite the school; whether their perception of their students is accurate, however, it does provide a ready-made reason not to worry overmuch about how well one teaches.  The die was cast more or less in the genes.

I don’t think that’s quite fair to us as teachers, however; I think professors at law schools by and large take teaching seriously and the issues are more what should be taught to students.  I would indeed favor professors teaching more classes and, in many doctrinal classes, larger classes.  But we also have to understand that the law is wider and deeper, the doctrinal areas that lawyers need to know and interrelate with one another, the background disciplines that we expect them to have absorbed as practicing lawyers – all that has gotten vastly more complicated since my days in law school.  Teach students attorney skills?  The same folks demanding that are also demanding greater exposure to doctrinal law, and they’re demanding that they know something about accounting and basic business and finance, too.  Expectations of lawyers have gone up, too.  Which is one reason I find talk of making law an undergraduate degree somewhat peculiar.(And I see a number of commenters essentially arguing that lawyers don’t need to know or have formal education in much more than an undergraduate degree in law and some practical training, as is the case in many countries. That’s for another post, but I don’t think that reflects what we expect lawyers in this society and this legal system to know, and to have absorbed from other disciplines.)

Conversely, if law school does not provide very much in the way of value added; if the die was cast, as indicated by LSAT scores; then eventually students will simply skip the purchase of the education and look at their LSAT score first and see what it will buy them.  Anecdotally, I think that is happening now to some extent, despite the hope springs eternal of the young and naive.  As purchasers of the service figure out that it’s basically just sorting, they can do that themselves, and the result?  (Added: no, I don’t think the LSAT is an adequate measure of raw talent, nor does Bourne, but it is what the system has produced in the way of effects.)  Law schools, Bourne says, have lived in a bubble of good times for years, and now the reckoning is upon us.  What will it look like?  Among other things, he focuses on those schools in the first tier below the T-14:

Curtailment of the market for law schools is going to be extremely painful for many schools. The going consensus is that the truly elite schools should survive easily. As their reputations are likely to continue to draw plenty of students and their graduates are likely to be able to retain dominance in the smaller but still powerful large firm market in which entry-level salaries make paying off student loans a reasonably painless operation, truly elite schools are likely to survive if not prosper. What happens just below the elite is more subject to doubt.

Beyond the truly elite institutions, difficulties are likely to reverberate all down the law school pecking order. Many schools with strong national reputations, such as those that fill out the rest of the first tier of U.S.News’ rankings, may have great difficulties surviving in the current environment unless they engage is massive cost cutting. These schools have cost structures that rival “top ten” schools but pay for their status by raising tuition rates for the bottom half of their classes so as to afford discounted tuition and financial aid to well-credentialed students whose admission can enhance their standing in the U.S. News rankings. The shrinking number of jobs available to pay the high cost of going to one of these schools may force them to pull back from the financial aid arms race rather than pay more for what little return they will get from picking up the few top paying jobs available for schools of their rank. As their graduates fight for private employment in mid-sized firms that at least allow them to “break even,” schools in mid-tier positions will find it harder to place their graduates in even “break even” jobs without cost cutting of their own.

Recent commentators have suggested, not without justification, that a number of schools that lack high national reputations may nevertheless be able to weather the storm. Particularly well suited are schools in small, less served markets that never did bite the BigLaw apple, have modest cost structures and strong alumni bases upon which to rely.  State-supported schools, because of the lower student debt levels needed to attend and graduate, are much better off than private institutions with debt levels that are fully 50 percent higher on average.  Downsizing may not be enough.

Cassandra?  Realist?  Moralist and scold?  Your call.

Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….

Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

Thus, for instance, say that A asserts that B is guilty of “blackmail.” Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]‘s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass’n, Inc. v. Bresler (1970).

Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable,” an assertion (however logically unsound, in my view) that Fluke’s demands are morally similar to a prostitute’s insistence on getting money for sex. That is a statement of opinion and constitutionally protected.

[UPDATE: Some comments led me to conclude that I should elaborate on this, so I added the following paragraph.] The same is so for the “slut” claim, for a related reason: Limbaugh isn’t claiming any private knowledge of Fluke’s number of sexual partners; he is simply expressing his opinion that people who are as concerned about contraceptive costs as Fluke are probably sexually promiscuous, and that Fluke fits that mold. Reasonable listeners would understand that as an opinion expressing a generalization about how people tend to behave. To borrow an analogy from Restatement (Second) Torts § 566 cmt. c ill. 4, “A writes to B about his neighbor C: ‘He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.’ The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.” In the illustration, the statement is seen as an opinion about what to infer from the facts, and is thus not actionable; that is even more clearly true as to the statement that, “What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right?”

Milkovich v. Lorain Journal Co. (1990) suggests that the First Amendment doesn’t fully constitutionalize the § 566 principle. But I think that Limbaugh’s broad generalization-based inference — and one that uses a term, “slut,” that is itself so vague and opinion-laden, given that it basically means “more sexual partners than I think is proper” — would in context be seen as constitutionally protected opinion and not the sort of particularized fact-based accusation at issue in Milkovich. And in any event, as a state law matter, Florida courts have apparently adopted the § 566 cmt. c approach. (See, e.g., Stembridge v. Mintz (Fla. Ct. App. 1995).)

If Limbaugh had called Fluke “prostitute” or “slut” in a different context, in which he was asserting that she actually was paid money for sex in a normal prostitution transaction, or that he knew that she actually had sex with many partners, then it might well be actionable. But I don’t think that this is how Limbaugh’s statements would be perceived by listeners. Marc Randazza (Citizen Media Law Project) has much more on this.

2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).) This doctrine has long been used to invalidate laws that ostensibly favor women but are based on, and perpetuate, sex-based norms of proper behavior; and at least two cases, Ivey v. State (Ala. 2001) and Rejent v. Liberation Pubs. (N.Y. App. Div. 1994), have specifically concluded that such sex-based rules in libel law are unconstitutional — here’s what Rejent said:

It is, as one commentator has noted, ‘quite blatantly sexist and discriminatory, and is based on outmoded assumptions about sexual behavior. Sex-based classifications very similar to the ‘unchastity of a woman’ rule have been struck down by the United States Supreme Court as violative of the equal protection clause…. The Restatement (Second) takes a laudable lead in this area, modifying the traditional rule to a sex-neutral standard that renders any imputation of ‘sexual misconduct’ by a man or woman slanderous per se.

And since I quite doubt that Florida courts would be willing to cure the discrimination by broadening the criminal law to cover accusations against men — courts in most states generally aren’t allowed to essentially criminalize behavior that the legislature hasn’t criminalized — I think the Florida statute would have to be struck down as an Equal Protection Clause violation, leaving it to the legislature to decide whether to reenact a sex-neutral statute. Such a sex-neutral statute would probably be considered a constitutional criminal libel statute if limited to knowing falsehoods; Garrison v. Louisiana (1964) suggests that such criminal libel statutes are constitutional if suitably limited, and I suspect that the focus on accusations of sexual impropriety would be constitutional despite R.A.V. v. City of St. Paul (1992), because it seems unlikely to be aimed at the suppression of ideas. But it would be up to the Florida Legislature to create such a sex-neutral statutes, and not to the Florida courts to broaden it. (For an extremely rare case where a court solved a constitutional problem with a criminal statute by broadening the criminal prohibition, see People v. Liberta (N.Y. 1984), a case that was driven by felt moral imperatives that are likely not to be present here.)

There has been a lot of chatter lately about how Justice Scalia’s concurring opinion in Raich somehow binds him to rule for the government in the challenge to the ACA. As the lawyer for Angel Raich, I admit to being disappointed by the outcome of the case, by Justice Scalia’s vote, and by his opinion. But during the course of that litigation I became very familiar with the issues raised by that case, and since then have come to appreciate the problem with which Justice Scalia was wrestling. There are two very important implications of his opinion in Raich, and neither benefit the government’s case.

First, as I explained in my 2010 NYU Law & Liberty article, Justice Scalia clearly locates the “substantial affects” doctrine of Darby and Wickard, as well as the “essential to a broader regulation of interstate commerce” dicta in Lopez, in the Necessary and Proper Clause, not in the Commerce Clause — and in particular in the word “necessary” in that clause. Why is this so important? Because if the substantial affects doctrine is viewed as resting on the Commerce Clause, then there is a temptation to add the Necessary & Proper Clause to it as an additional theory of power, and failing to realize that Lopez and Morrison were actually limiting the scope of the Necessary & Proper Clause, not the Commerce Clause.  In short, there are judicially enforceable doctrinal limits to the scope of the Necessary  & Proper Clause.

Moreover, if the substantial effects and essential to a broader regulatory scheme doctrines are both grounded in the word “necessary,” then there is still the issue of whether a particular means deemed “necessary” is also proper.  In Printz, for example, Justice Scalia concluded that imposing a mandate on – or “commandeering” of – state legislatures to enact legislation, however essential it might have been to the regulatory scheme in that case, was still an improper means of effectuating Congress’s Commerce power.  True, Printz was based on the protection of states afforded by the Tenth Amendment, but the Tenth Amendment applies equally “to the people” as it does to the states. And, in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion that reaffirmed Justice Scalia’s characterization of the Necessary and Proper Clause as “the last best hope of those who defend ultra vires congressional action.”

In Raich, we never denied the proposition that the “essential to a broader regulatory scheme” doctrine was grounded in the Necessary and Proper Clause, but argued instead throughout the litigation that whether a law was “essential” and therefore “necessary” had to be survive greater scrutiny than mere rational basis review. When Justice Scalia adopted a rational basis approach to ascertaining “necessity,” however, we lost his vote.  (Significantly, Justice Kennedy, in his concurring opinion in Comstock, recently advocated a heightened rational basis scrutiny in Commerce Clause cases.)

In our challenge to the Affordable Care Act we are not asking for any heightened scrutiny of the “necessity” of the mandate for the broader regulatory scheme of the ACA, so neither are we challenging this crucial aspect of Justice Scalia’s opinion in Raich. Indeed, our severability analysis hinges on Congress’s finding that the mandate was “essential” to its scheme of regulating insurance companies.  Rather, we are making two claims not addressed in Raich by either the majority or by Justice Scalia.

• First, that the mandate is not necessary “to carry into execution” Congress’s power over interstate commerce. Unlike in Raich, those who fail to purchase health insurance in no way obstruct the ability of Congress to enforce its regulations on insurance companies. Instead, Congress wants to ameliorate the negative consequences of successfully executing its insurance company regulations by forcing these citizens to compensate the insurance companies for the cost of the regulation by transferring their wealth to these companies. These consumers are being forced to buy expensive policies priced far above their actuarial risk for the purpose of providing what amounts to a subsidy or transfer payment to the insurance companies. In other words, the need for the mandate assumes that insurance companies will comply with Congress’s commerce power regulation, but suffer economically as a result. Neither the Court in Raich nor Justice Scalia were addressing this claim of power by the government in any way.
• Second, unlike in Raich, we are claiming that, however “necessary” they may be, mandates of this sort are an improper means of executing the Commerce Power of Congress.   I won’t elaborate on this claim here, except to note that it is precisely Justice Scalia’s opinions in Raich and  Printz that make so very clear why this claim is one is a serious one that must be addressed.

In Raich, we were asking the court to carve out a subset of the class of activities Congress sought to regulate and find that this subset was beyond its power under the Commerce Clause. In his concurring opinion, Justice Scalia was wrestling with the following practical issue: Given the fungible nature of the commodity, what if “to carry into execution” its power to prohibit interstate marijuana, Congress decided it was “necessary” to regulate the subset of activities involving the identical commodity inside a state — regardless of whether it was being bought and sold and was therefore “noneconomic”?  He concluded that Congress could draw the circle, that is define the class, as widely as it had a rational basis for believing it needed to be drawn to enable it to effectively enforce its regulation of interstate commerce that is within its powers.  If so, as Justice Stevens suggested during his questioning of Paul Clement in oral argument, there was simply no way to win an “as applied” Commerce Clause challenge by identifying a subset of the class of activities that Congress sought to regulate.

But the challenge to the individual mandate is a facial challenge like that in Lopez and Morrison.  Unlike “as applied” challenges, facial challenges have succeeded (even where a subset of the class, like guns that had moved in interstate commerce, might well have been within the power of Congress to reach).  Indeed, in his dissenting opinion in Raich, Justice Thomas noted in a footnote that the majority’s decision had no affect on future facial challenges, such as those brought in Lopez and Morrison.  Unlike Raich, we are facially challenging the claim that Congress has the power to impose mandates to engage in economic activity by entering into contracts both because (a) such mandates are not necessary to carry into execution the regulation of the insurance companies and because (b) the unprecedented claim of power to impose a mandate to enter into contracts with private companies is highly improper. The “subset” enforcement problem Justice Scalia was grappling with in the “as applied”  challenge in Raich simply does not exist here.

Just because the individual insurance mandate is unprecedented does not automatically render it unconstitutional – though, in Printz, Justice Scalia affirmed that the fact that so attractive a power has never before been claimed by Congress is evidence the power does not exist. But the unprecedented nature of the mandate does make this a case of first impression, which means it is not directly covered by either the majority’s or Justice Scalia’s opinion in Raich.   To distinguish his opinion in Raich from this case, Justice Scalia would not even have to break a sweat.