The Volokh Conspiracy

This Wednesday at 3:30 PM, I will be doing a Supreme Court roundup presentation at Catholic University’s Columbus School of Law, sponsored by the Catholic University Federalist Society. The event will be held in the Slowinski Courtroom.

The presentation will cover some of the major cases of the 2010-11 term, and also look ahead to the Court’s likely future consideration of the individual mandate cases. Catholic University law professor Robert Destro (no relation to this Destro, I assume:)) will comment on my talk, and there will also be questions from the audience. Come one, come all, if you are interested and in the DC area.

The AP-National Constitution Center poll, conducted August 18 to August 22 of this year, asked respondents whether they are “extremely confident, very confident, somewhat confident, not too confident, or not confident at all in the people who are running” that institution. Here’s what the respondents said, broken down into rough bands:

The big changes since last year’s poll were a 16% increase in the spread for the military, a 12% increase in the spread (meaning greater confidence) for big business and the Supreme Court, a 9% increase in the spread for banks and charities, and a 7% decrease in the spread (meaning lesser confidence) for Congress.

Naturally, this sort of data is of limited relevance, since many respondents might not have a firm preexisting opinion on the subject, and their response after a few seconds might differ sharply from their views if they discussed the matter for some time. Moreover, some of the categories are pretty wide, and it may well be that people have a much more positive view of (for instance) some organized religious institutions than others. Nonetheless, I thought I’d pass it along in case people were interested.

Federal district Judge Christopher Connor of the Eastern District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding it would give Congress unlimited authority to enact other mandates. My own view is that upholding the mandate would indeed lead to an unconstrained slippery slope of this kind, as I explained here. On the important severability question, Connor argues that the preexisting conditions coverage requirement cannot be severed from the mandate, but that the rest of the bill can be.

We now have three district courts and one court of appeals that have voted to strike down the mandate, and three district courts and one court of appeals that have voted to uphold it. Of the twelve federal judges who have considered the question, six have gone one and six the other. It is now more clear than ever that there is no expert consensus on this subject, and that this is not a frivolous case that only ignorant or misguided extremists could possibly support.

This Thursday morning, I’ll be participating at an event at the American Enterprise Institute on how the individual mandate litigation might fare at the Supreme Court. The panelists include Eric Claeys, Gregory Katsas, James F. Blumstein, and Thomas Miller.

And if you’re looking to make the rounds of conservative/libertarian think tanks that day, don’t forget about Cato’s Constitution Day event, which begins right after the AEI panel.

That’s how the North Carolina state senator who’s sponsoring the anti-SSM amendment began his speech today. Others are citing “statistics” that show a married mother and father provide the best structure for raising children — though the studies compare opposite-sex couples to single parents, not gay parents. You can watch the debate live here.

UPDATE: The amendment passed the state senate, 30–16.

Going on the offensive against Texas Governor Rick Perry for issuing an executive mandate that young girls receive a vaccine against HPV, Rep. Michele Bachman embraced the fringe (and thoroughly discredited) claim that vaccination can cause mental retardation.  Details here and here.  It is understandable that a parent whose child experiences difficulties will be distraught and search for answers, but to give credence to the claim that vaccination causes mental retardation, autism, or other disabilities is thoroughly irresponsible.  It is one thing to debate whether a state government should mandate that children are vaccinated against something like HPV, and whether a voluntary opt-out provision is protective enough of parental prerogatives.  It is quite another to suggest that mandated vaccination creates serious health risks when there is no evidence to support such a claim.

For what it’s worth, I criticized Senator John McCain for a similar offense in 2008

The ruling by Judge Rosemary Collyer was not unexpected; it provides that the CIA does not have to release records related to its drone-targeted killing program, as sought by the ACLU in a Freedom of Information Act (FOIA) suit.  The opinion is here, and Politico gives a brief summary of it here (h/t Lawfare).  Politico’s Josh Gerstein sums it up:

Ruling in a Freedom of Information Act case brought by the American Civil Liberties Union, Judge Rosemary Collyer said records about the use of drones could be withheld under the rubric of “intelligence sources and methods.” She rejected the ACLU’s arguments that lethal drones aren’t really involved in acquiring intelligence.

“At first blush, there is force to Plaintiffs’ argument that a ‘targeted-killing program is not an intelligence program’ in the most strict and traditional sense,” Collyer wrote, before concluding: “The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence.”

Gerstein goes on to note that this ruling does not address other agencies of the government, such as State, which do not have these specific exemptions related to intelligence; without having done an exhaustive survey of FOIA cases, however, I would be surprised if something that the CIA could withhold on intelligence exemptions could be got sideways from other federal agencies.

From a substantive standpoint, I thought the ACLU’s attempt to sever “intelligence gathering” from drone strikes as targeted killing was clever as a litigation ploy, but not sustainable in real life.  The fundamental point is that drone strikes in targeted killing are the last kinetic step in what is a massive intelligence operation — “intelligence-driven uses of force,” as I’ve been calling them.  Drones in their surveillance role are part of that intelligence gathering, but in Afghanistan and Pakistan, the effectiveness of the drones program of targeted killing depends enormously on the CIA’s ground level intelligence gathering, a network that has taken years of effort to get underway, and which — among other things — angers Pakistan because it has allowed the US to determine its own targets without having to rely on Pakistani military and intelligence.

There is no ability to sever the gathering from the strikes; they are all part of the same operation, from the fat middle of intelligence gathering and assessment from many different sources to the thin tail of the drone strike at the end, followed by more surveillance afterwards to determine what happened.  (I talk about this at the beginning of a working paper in v2 I’ve put up at SSRN, When “Efficiency” Jus in Bello Creates “Inefficiency” Jus ad Bellum: Does Targeted Killing Through Drone Technology Make the Resort to Force “Too Easy”?.  There was an earlier draft of the paper, messy and very first draft; this is a drastically re-organized and re-written version, and frankly a lot better — though it won’t be the final published version.  The paper is mostly a philosophy paper, not directly on targeting operations, but the opening section, on disentangling drone use from targeted killing, addresses some of these issues.)

Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd’s appeal of the district court’s denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd’s claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what “paranoid schizophrenia” means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd’s paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury’s deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215–17 (1982), a point Chief Judge Batchelder stressed in her concurrence.

I don’t know the case law in this area to know which side offers the better interpretation of the Supreme Court’s precedent or how such ex parte communications should be handled. The dissent notes that the majority of Circuit’s reject the view that Smith abrogated Remmer, and the majority of circuits may be right. Only one circuit disagrees — but therein lies the problem for Judge Merritt’s argument. As he acknowledges in footnote 1 of his opinion, that one circuit is the Sixth. The circuit concluded Smith abrogated Remmer in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984). Moreover, as Judge Batchelder notes, the Sixth Circuit has followed this holding since. Therefore, even if Judge Merritt offers what is ultimately the better argument, the panel was bound to conclude otherwise, as this is the law of the circuit unless and until the question is revisited en banc or reaches the Supreme Court.

This morning the Associated Press and National Constitution Center released their latest survey on American attitudes toward governmental institutions and constitutional questions. Among other things, the poll shows that Americans appear to be increasingly comfortable with giving the President greater authority to address economic concerns. One of the results that caught my eye was a question on the individual mandate. Here’s the question:

Do you think the Federal Government should have the power to require all Americans to buy health insurance, and to pay a fine if they don’t or do you think the Federal Government should not have that power?

Eighty-two percent of respondents answered “no” to this question, and only sixteen percent answered yes. According to the AP and NCC, these results are nearly identical to a similar question asked a year ago. This is an opinion poll, so all the usual caveats about how a question is worded, etc., apply. Nonetheless, I found this result quite striking, and a bit surprising.

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

Bruce Bartlett makes the case for raising government revenue through “offsetting receipts” and user fees for government-provided services.

Once upon a time, it was a principle of conservative budget analysis that the federal government ought to impose user fees wherever possible, because it was unfair for taxpayers to subsidize programs that benefited only a limited group of people or businesses.

For example, user fees were a big part of the recommendations put forward by the Grace Commission, established by Ronald Reagan to find ways of reducing federal costs. It published an entire volume detailing opportunities to impose fees and raise those insufficient to cover benefits received by users of government services. . . .

The Government Accountability Office and the Congressional Budget Office periodically publish reports on user fees that can easily be consulted for ideas on how they can be improved. Budget conventions that treat such fees as reduced spending offer a way out of the budget impasse imposed by the tax pledge. And they could make a major contribution to meeting the $1.5 trillion deficit-reduction target that the Joint Select Committee on Deficit Reduction must meet by Nov. 23.

It’s an Irish case, Lough Swilly Shellfish Growers Co-operative Society Ltd & Anor v. Bradley & Anor, and it deals with the claim that, “[u]nder English law, as a result of Magna Carta, [private] fisheries could not be created in tidal waters unless they existed prior to the death of Henry II.” But that provision of Magna Carta, the court says, is yesterday’s news, having been repealed in relevant part by subsequent legislation (if I understand the matter correctly).

Thanks to Prof. Seth Tillman for the pointer.

UPDATE: Prof. Tillman adds,

Lough Swilly is a fun case. The debate is not on the English Magna Carta of 1215 between King John and English barons, but on the Irish Magna Carta of 1216 between King Henry (don’t ask me which one, John’s son, I think) and the Irish barons. The case is on a serious and misunderstood point of constitutional law — the relation between statutory authority and ministerial powers (what we would call inherent Executive Branch powers). Some of the same issues were mooted in an older Irish case — Moore v. Attorney-General [1934] I.R. 44 (Sup. Ct. Eire), which was adjudicated under the Free State Constitution of 1922, not the current constitution enacted in 1937.

Note that the Irish Magna Carta seems to have been largely the same as the English Magna Carta, but with some Ireland-specific changes.

For more on the underlying story, see here. The short version is this: A cheerleader was removed from the cheerleading squad because she had refused to cheer for a player who (she alleged) had raped her. The cheerleader and her parents sued, claiming (among other things) that the school district’s action violated her First Amendment right not to speak. The District Court and the Fifth Circuit Court of Appeals held for the school district (I think correctly), and the Supreme Court refused to hear the case. But the district court also concluded that the cheerleader’s claims weren’t just mistaken but frivolous, and ordered plaintiffs to pay the district’s attorney fees and costs; I had thought the total was $45,000, but the latest decision reports that it was a bit under $39,000 (I’m not sure why, but perhaps not all the fees and costs were being appealed, or perhaps the initial award had been reduced earlier by the district court).

Just today the Fifth Circuit held that the First Amendment claim wasn’t frivolous, though the plaintiffs’ other claims — under the Equal Protection Clause and the Due Process Clause — were indeed frivolous. It therefore remanded for the trial court to “recalculate the attorney’s fee award to reflect only ‘reasonable attorney’s fees incurred because of, but only because of, [the] frivolous claim[s].’” The court didn’t discuss what the district court described as plaintiffs’ failure to respond to the fees claim, but appellate courts often have the option of excusing such waivers, if they so choose. Thanks to How Appealing for the pointer.

Today’s WSJ has an interesting article discussing how Texas Governor Rick Perry has exercised the prerogatives of his office and increased the power of his position during his eleven years in office. Here’s a taste:

By constitutional design that dates to Reconstruction, Texas has a weak governorship. In addition to the legislature, power is diffused among 270 agencies, boards and commissions. Governors makes appointments, but wield limited power over them because members can’t be fired, said Cal Jillson, a political scientist at Southern Methodist University in Dallas. . . .

Mr. Perry’s ability to strengthen his hand is partly due to his longevity. He has served for 11 years, longer than anyone in Texas history and long enough to leave his mark on state commissions. (Texas has no term limits for its governor.) Mr. Perry’s spokesman, Mark Miner, said that to the best of his knowledge, Mr. Perry had appointed every leader and member of the state’s 270 agencies, boards and commissions, which would be unprecedented. . . .

Mr. Perry has also used legislation to consolidate authority. In 2003, he pressed for and won a sweeping overhaul of social services. It streamlined 12 health-and-human-services agencies into five, with power centralized under a commissioner, named by the governor. Agency boards were replaced with advisory councils and stripped of rule-making authority.

Also that year, Mr. Perry moved the economic-development and tourism portfolios from a state agency into the governor’s office to focus efforts on job creation. From there, he created the Texas Enterprise Fund and the Texas Emerging Technology Fund. Allies say the funds helped fuel the state’s jobs growth, while some on both the right and left have called the funds an inappropriate use of taxpayer money.

The article also discusses Gov. Perry’s controversial decision to replace members of the Texas Forensic Science Commission shortly before the panel was set to review evidence suggesting Texas may have executed Cameron Todd Willingham in error. (I covered that controversy here and here.)

In this Reason article, Jacob Sullum documents the Obama administration’s disappointing record on the War on Drugs. Although as a Senator and presidential candidate Obama expressed strong support for liberalizing drug laws, as president he has done almost nothing on that score, and in some areas he has even tightened up enforcement. The administration has even reneged on the president’s popular campaign promise to end medical marijuana raids in states where medical marijuana is legal under state law.

It would be wrong to blame Obama alone for policies that have developed over the course of several decades. Nor would it be realistic to expect him to end the War on Drugs in one fell swoop. The real tragedy of his record in this area is that he has not even taken incremental steps that enjoy strong popular support, such as legalizing medical marijuana and cutting back on draconian sentences for low-level drug offenders. Even full legalization of marijuana gets about 46% support in polls, which is a higher level of popularity than Obama himself enjoys right now. It’s also worth noting that Obama has backtracked on his previous commitments on the War on Drugs at the very time when lots of prominent groups are calling for an end to the War.

The administration does deserve credit for curbing drug interdiction in Afghanistan, which had previously done much to undermine the War on Terror there. On the home front, however, the Administration’s War on Drugs policy has been a disappointment to all but committed drug warriors.

From Mick Haig Prods. v. Does 1–670 (N.D. Tex. Sept. 9, 2011) (thanks to InstaPundit for the pointer):

To summarize the staggering chutzpah involved in this case: [Lawyer Evan] Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to -– even though he had already done so -– and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.

The court ordered Stone to pay $10,000 in sanctions, ordered him to serve a copy of the order “on each ISP implicated and to every person or entity with whom he communicated for any purpose in these proceedings,” to “file a copy of this Order in every currently-ongoing proceeding in which he represents a party, pending in any court in the United States, federal or state,” and to pay the attorney fees and costs expended by the other side in filing the motion for sanctions. (Because the lawsuit was against unknown parties, and the dispute at this point had to do with whether their identity could be uncovered, the court appointed lawyers to represent the unknown parties; it is those lawyers’ fees that Stone has to pay.)

You can watch it live here.  It’ll be interesting to see whether supporters of the amendment make substantive arguments in opposition to same-sex marriage.  Recently, they have emphasized only the desire to leave the issue to voters.

UPDATE: The amendment passed the state house, 75–42.  It moves to the state senate.

SECOND UPDATE:  A story with a link to the langage is available here, including a link to the amendment language (H/T: Rex Wockner)  The language is unusual, but it appears to be one of the broadest amendments that’s been proposed in any state, banning not just SSM but any “domestic legal union” other than an opposite-sex marriage.  That appears to target civil unions and domestic partnerships, for starters.  The other noteworthy fact about passage is that’s it’s proposed for the May 2012 primary rather than the 2012 general election.  That will maximize the chances of passage since turnout among Republicans may be especially high as compared to Democrats during the primary.

These two new terms, referring to a concurrence in the denial of rehearing en banc and a dissent from the denial of rehearing en banc, were minted by my former boss, Chief Judge Alex Kozinski, and are now apparently being used by some Ninth Circuit judges. Above the Law is now running an online poll about them; David Lat dislikes them on aesthetic grounds, but I don’t share his aesthetic judgment on this and find the words to be useful. In any case, if you run across the terms, you’ll know what they mean.

See here for a report on a controversy involving such objections. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

An engaging lecture (about 25 minutes long):

Is Civility Important? from Yale Law School on Vimeo.

I agree with most of co-blogger David Bernstein’s advice to aspiring law professors. In particular, David is absolutely right to reject the view that you can’t have a major impact on the scholarly and public debate in your field unless you’re at a top 15 school. I had the same fear when I was on the job market. But I was wrong.

Today, it is more possible than ever for professors at lower-ranking schools to have a big influence. For example, 2009 data shows that even the then-untenured bloggers here at the VC had citation counts comparable to those of tenured law professors at top ten-ranked schools, (and none of us teach at schools ranked in the top 15). The same can be said for other VCers teaching outside the top fifteen, such as David Bernstein, David Post, and Todd Zywicki. And the VC itself is an example of how professors at lower-ranked schools can have an impact on public debate, as well as academic discourse.

Modern technology makes it easier for scholars at lesser-known schools to get their work noticed. Thanks to Westlaw, Lexis, and SSRN, well as good old e-mail, you can easily make your work available to interested colleagues even if you aren’t being invited to conferences and workshops at the top 15 schools. Four VCers who don’t teach at top 15 schools are among the top 150 lawprofs in the world in lifetime SSRN downloads, led by Orin Kerr (No. 13), and Todd Zywicki (No. 71). There are numerous non-VCers from non-top 15 schools who rank that high as well. And once you build up enough of a reputation by these other means, the conference and workshop invitations will start to come in too. The internet and the blogosphere also make it easier for non-top 15 professors to influence public debate, if they are so inclined.

There’s no denying that professors at the best-known schools have a real advantage. It’s certainly easier to attract attention to your work if you’re a professor at Yale than if you’re at Podunk U (or George Mason, for that matter). The big name school gives you instant credibility that a lower-ranked school doesn’t. But if you do enough good work and use modern technology to promote it, you can have an impact wherever you are.

UPDATE: Eric Muller writes that “Ilya Somin is of course right that those of us on law faculties below the “Top Fifteen” can do things that have a big impact. But he’s only half right, because he’s only talking about the impact we can have on each other (and on our citation practices).” That’s not entirely true. I also mentioned the impact lawprofs can have on public debate outside the academy. Eric goes on to note that professors at any level can also have an impact on their students and local communities. That’s clearly true. But I don’t think anyone doubts it, which is why I didn’t mention it. What is more debatable is whether professors at lower-ranked schools can influence academic and public debate in their fields.

In what common English word (not a proper name) is “tion” commonly pronounced as “zhun”?

By “zh,” I mean the second-to-last consonant sound in “collision.” “Shun” is also an alternative pronunciation of “tion” in the word I have in mind, but “zhun” is a very common pronunciation nonetheless. Please check your answer in a dictionary before posting it.

UPDATE: Just to make it extra clear, I mean the “zh” sound, not the “sh” sound (e.g., as in “vacation”). (Also, I originally explained “zh” as the last consonant sound in “garage,” without realizing this was ambiguous, since some people pronounce “garage” with a “j” sound at the end rather than a “zh” sound. “Collision,” I think, should be unambiguous.)

Econ Journal Watch has an excellent symposium on property rights, including leading scholars such as Tom Merrill, Henry Smith, Robert Ellickson, Richard Epstein, and my colleagues Eric Claeys and Adam Mossoff. Here is the summary:

Lawyers and social scientists often describe property as a “bundle of rights.” What are the connotations of “bundle”? What features of property does the “bundle” talk obscure or even deny? What are its political consequences?

In the past 15 years, the “bundle of rights” view has been provocatively challenged, notably by James E. Penner, Thomas W. Merrill, and Henry E. Smith. This symposium brings the challenge to the fore, as these leading critics elaborate the core points of contention. They are joined by three younger critics of the “bundle” view, each with a fresh perspective.

Two eminent legal scholars, Richard A. Epstein and Stephen R. Munzer, take up the challenge. Each mounts his own defense of “bundle of rights” theory. Another renowned property scholar, Robert C. Ellickson, weighs in and stakes out a middle ground.

I am generally a fan of the “bundle of sticks” view, and the symposium essays by Epstein and and Munzer articulate some of the reasons why. However, the opposite perspective also makes some good points, and is well-represented in the symposium by Merrill, Smith, and others.

I highly recommend this exchange to property scholars and anyone else interested in the subject.

In his post below, Stewart Baker writes that DOJ official James Baker “gave a persuasive defense” of the broad view of that the Computer Fraud and Abuse Act should apply to Terms of Service violations and employee restrictions on computers. In this post, I want to explain why I don’t find DOJ’s defense of existing law persuasive. I will then propose a statutory fix to reconcile DOJ’s concerns with the concerns of the CFAA’s critics — critics including myself.

Let’s start with James Baker’s written testimony, which I’ll refer to as “DOJ’s testimony” just to avoid confusing the Bakers. According to DOJ, applying the CFAA to Terms of Service violations and employee access restrictions is justified on the following grounds:

All types of employees in both the private and public sector – from credit card customer service representatives, to government employees processing tax returns, passports, and criminal records, to intelligence analysts handling sensitive material – require access to databases containing large amounts of highly personal and otherwise sensitive data. In most cases, employers communicate clear and reasonable restrictions on the purposes for which that data may be accessed. The Department has prosecuted numerous cases involving insiders in both the public and private sectors who have violated defined rules to access and obtain sensitive information. In many prosecutions involving insiders, the “terms of service” and similar rules in employment contexts define whether the individual charged was entitled to obtain or alter the information at issue. This is almost identical to prosecutions under other statutes, in which internal procedures, agreements, and communications must be examined by a fact-finder to determine, for example, whether a particular payment was authorized, or embezzlement or fraud.

Employers should be able to set and communicate access restrictions to employees and contractors with the confidence that the law will protect them when their employees or contractors exceed these restrictions to access data for a wrongful purpose. Limiting the use of such terms to define the scope of authorization would, in some instances, prevent prosecution of exactly the kind of serious insider cases the Department handles on a regular basis: situations where a government employee is given access to sensitive information stored by the State Department, Internal Revenue Service, or crime database systems subject to express access restrictions, and then violates those access restrictions to access the database for a prohibited purpose. Similarly, businesses should have confidence that they can allow customers to access certain information on the business’s servers, such as information about their own orders and customer information, but that customers who intentionally exceed those limitations and obtain access to the business’s proprietary information and the information of other customers can be prosecuted.

On one hand, DOJ is right that some specific circumstances justify punishment for a person who has violated a written restriction on access to a computer. If a written restriction protects extremely private or valuable information, then violating that written restriction inflicts a real privacy harm. The harm exists because the information is particularly sensitive, and the restrictions on the information are therefore important. Unsurprisingly, those are the cases DOJ likes to use as examples: The government employee who uses the sensitive database of private information for personal reasons, or the insider who accesses very valuable proprietary information. When a person violates these important restrictions on very sensitive data, a genuine privacy harm has occurred.

But here’s the problem. The Computer Fraud and Abuse Act does not only protect particularly sensitive or valuable information. Instead, the statute protects access to any information, no matter of what source or kind, protected by any restriction, no matter of how silly or serious, stored inside any computer, no matter of what nature or importance, located anywhere in the galaxy that the Commerce Clause can reach. It has no special rules for employers, or for customers, or for sensitive information, or for important access restrictions. It applies to everything. Any kind of information. Every computer and every access restriction, whether connected to a network or not. Perhaps .00000001% of the restrictions that the law covers are the kinds of cases that DOJ claims as cases it might prosecute. And that’s why it’s so easy to create completely absurd hyptheticals of silly ways that innoucous conduct is criminalized — and under the new proposal, made a felony — under DOJ’s view of the statute. Just have a silly computer owner set up a computer with no sensitive information on it, have him give everyone access, and then imagine an arbitrary restriction on that access that has nothing to do with privacy, money, or any real interest at all. Voila! It’s just as much of a CFAA violation as any of the examples DOJ uses.

I promised a way to reconcile DOJ’s concerns with the concerns of critics of the CFAA. So here it is: Congress should limit when the CFAA prohibits “exceed[ing] authorized access” to cases in which the information obtained is particularly sensitive or valuable. The law should continue to broadly prohibit actual hacking — that is, access “without authorization.” But if the prohibition on “exceed[ing] authorized access” is to be read to apply to Terms of Service violations and employee restrictions, Congress should specify what kinds of sensitive information federal law protects. For example, a list might look something like this:

(a) Information with a value of more than $5,000
(b) sensitive or private information involving an identifiable individual (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, financial records, or photographs of a sensitive or private nature;
(c) information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954.

Under this proposal, DOJ would get everything it says it wants. DOJ would still be able to prosecute the government employees who access sensitive databases, whether they are sensitive because they store personal information (b) or national security information (c). DOJ would also still be able to prosecute instances in which folks access very valuable proprietary information via (a). But critics would also get what they want. The limitations on the scope of information covered by the “exceeds authorized access” prong would ensure that the law only applied to important access restrictions that protect real privacy interests. The combination of this and the required mental state of “intentionally” would ensure that people who violated silly or arbitrary access restrictions that protected no genuine privacy interests were not covered by the law. That substantial narrowing would also cure the serious void-for-vagueness problems with DOJ’s preferred reading of the statute.

I have little to say about the tenth anniversary of 9/11 that hasn’t already been better said by others. I was fortunate enough not to lose any relatives or friends in the attacks. I had briefly met Barbara Olson (who died on the plane that hit the Pentagon), and a couple of friends of friends from Amherst College perished in the World Trade Center. But I did not know any of these people at all well. Since then, I have had several friends and acquaintances who served in Iraq and Afghanistan, and almost went to Iraq myself in 2005 to consult on the federalism issues in the drafting of the new Iraqi Constitution (my trip was cancelled because the drafters went into a security lockdown after some of them were targeted by terrorists). But those are stories best told at another time.

My own experience of 9/11 was much less interesting or moving than that of many others. But it does include a minor example of how knowledge of social science and history can sometimes steer you wrong. I recounted it in this post:

I was clerking for a Fifth Circuit judge in Houston at the time, and was driving to work, listening to a top 40 station that never had any news reports. The regularly scheduled programming was interrupted by a breathless announcer who said that there were reports that multiple planes had hit the World Trade Center. I was skeptical. Why? Because I was familiar with the famous Orson Welles “War of the Worlds” incident in 1938, when a radio station broadcast fictional reports of an invasion by aliens from Mars, sparking a minor panic (the public reaction is recounted in Hadley Cantril’s classic book, which I had read in grad school). For some reason, I decided it was possible that the top 40 station was trying to boost ratings by repeating a version of Welles’ stunt. The scenario of multiple airliners crashing into the World Trade Center seemed almost as implausible as an alien invasion. And this station had never broadcast any other news during the weeks I had been listening to it. I decided to withhold judgment until I could check the news on the internet when I got to the office. When I arrived and found that CNN.com couldn’t be accessed, I realized that the reports were true.

The Obama Administration’s legislative proposals on cybersecurity are a distinctly mixed bag.  But probably the worst ideas are those put forward by the Justice Department, which last week testified about the need to update the Computer Fraud and Abuse Act.

Again.

In fact, for the eleventh time since it was adopted in the 1980s.  We’ve seen this movie. Every time Congress gets exercised about cybersecurity, the Justice Department claims that the CFAA needs to be updated.  But “updated” almost always turns out to be a euphemism for “made more prosecutor-friendly.”

Justice’s latest proposals fit squarely into this mold.  Justice wants to create a new crime, hacking a critical infrastructure computer, with a mandatory minimum sentence of three years.  It wants to impose the same penalties on conspiracies and attempts as on successfully completed crimes.  It would get rid of first-time offender provisions in sentencing, increase sentences in general, allow civil forfeiture of hackers’ real estate, and make violation of the CFAA a RICO predicate, which would allow heightened penalties and private civil suits against violators.

Well, you might ask, why not get tough with hackers?  Surely we shouldn’t be playing pattycake with Anonymous and Lulzsec, let alone the foreign hackers endangering our national security.  That’s true, but the problem we have with those hackers is not the weakness of our criminal penalties but the fact that, most of the time, we can’t find them.  Until we do a better job of breaking the anonymity that protects them, increasing penalties for criminals we don’t catch will not make much difference.

Take a look at the website where Justice maintains a representative list of its most significant prosecutions.  What’s striking is how few prosecutions it has to brag about – less than 50 – and how few of those (maybe half) represent cases in which we actually caught the kind of remote hackers we’re most threatened by. I’m willing to bet that there is no other federal criminal law that has been amended so often in prosecutors’ favor with so few successful prosecutions to show for it.

The latest amendments are more of the same:  Shooting in the dark with a bigger gun. As protections against cyberattack, these amendments are useless.  They are added to the administration’s package mainly to give it the appearance of heft.

They are the legislative equivalent of Hamburger Helper.

Actually, they’re worse than that.  The RICO provision is far more dangerous than it first appears. To explain, I’ll need to repeat some of what Orin Kerr has been saying for years, so if you’re already familiar with that, you can skip the next ten paragraphs.

***

As I’ve said, the remarkable growth in cyberattacks over the last quarter century has enabled Justice to turn the CFAA into what may be the most prosecutor-friendly criminal statute on the books.  What does “prosecutor-friendly” mean in practice?  That any competent prosecutor can find a way to indict and convict anyone who does anything Really Bad with a computer.

With the CFAA, that’s mission accomplished:  The law imposes harsh criminal penalties on anyone who accesses a protected computer “without” or “in excess of” authorization.  The definition of a “protected computer” has been expanded until it covers any computer used in interstate or foreign communication, which in the Internet age is, well, every computer. As a practical matter, then, you can be indicted any time you do something on a computer that isn’t authorized. That term isn’t defined, but you can bet that if you do something Really Bad with a computer, it will turn out to be unauthorized.

Take Lori Drew, an overprotective, nasty mother who created a fake teenage-boy identity on MySpace in an effort to humiliate her daughter’s teenaged frenemy.  The scheme worked so well that the teen killed herself.  There’s no doubt that Lori Drew’s behavior was Really Bad, and it involved computers, so federal prosecutors decided it must violate the CFAA. And, mirabile dictu, it did.  By using a fake identity, Drew had violated MySpace’s terms of service, which meant that she had accessed a MySpace computer “in excess of” authorization. Drew was convicted, although in the end, with Orin Kerr’s help, the guilty verdict was overturned.

This kind of prosecutorial overreach is an inherent risk of the CFAA, given its reliance on the slippery concept of authorization.  As some civil liberties groups recently pointed out, the CFAA at its heart makes it a federal crime to violate a private contract, even a contract of adhesion like a social network’s terms of use:

If, for example, an employee photocopies an employer’s document to give to a friend without that employer’s permission, there is no federal crime (though there may be, for example, a contractual violation).  However, if an employee emails that document, there may be a CFAA violation.  If a person assumes a fictitious identity at a party, there is no federal crime.  Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation.

I don’t want to be too hard on the drafters of the CFAA;  they faced a tough drafting problem.  Hackers cause terrible harm, but the things they do aren’t all that different from the things legitimate users do.  Legitimate users open files, modify code, install programs, and send data to remote sites.  So do hackers.  We know the difference between the two, but it’s not easy to express that difference without falling back on the notion that the good guys are authorized to do those things and the bad guys aren’t.

I think this means that any statute that criminalizes hacking is likely to be either too broad or not broad enough.  Congress chose broad language to make sure that hackers couldn’t get off on a technicality, but in the process it gave Justice enormous prosecutorial discretion. Justice Department official James Baker gave a persuasive defense of the “authorization” test in last week’s testimony.  But the Department’s misuse of its broad discretion in the Lori Drew case suggests a need for greater accountability and discipline within the Department.  Requiring that the head of the Criminal Division sign off on all such cases — and take the blame if they turn out badly — may be a more workable solution than taking away the prosecutors’ discretion by changing the law.

Remarkably, though, that isn’t even the worst problem created by the CFAA.  The law also creates a private cause of action, handing a big legal weapon to everyone from the RIAA to the Church of Scientology.  And private parties aren’t exactly showing a lot of restraint.  According to the Center for Democracy and Technology, at least one company has brought a CFAA counterclaim in a pregnancy discrimination case, seeking damages under the Act because its employee acted in excess of authorization on the corporate network.  What did she do?  She violated a corporate proscription on “excessive Internet use.”  Equally abusive is a case that Orin Kerr has pointed out – Sony’s threat to sue PS3 hackers because they used their own computers in violation of Sony’s licensing restrictions.

Maybe back in the 1980s, Congress thought that creating a civil action would unleash the plaintiff’s bar on real hackers.  If so, Congress was deluded.

Civil CFAA lawsuits have proliferated but by and large they aren’t being filed against people who hack into systems.  Instead, they’re being brought by corporations against employees thought to have downloaded too much information from the corporate network before quitting.  They’re being brought by websites to keep competitors from using “scraper” software to collect their pricing data. Maybe those are bad things.  If so, they’re probably already torts under state law, and it’s hard to see why the cases should be in federal court.  And if they aren’t torts under state law, well, it’s even harder to see why they should be in federal court.  It’s the law of unintended consequences run amok.

***

OK, that’s the Gospel According to Orin Kerr. Now back to the latest proposal from Justice.

Justice wants to make the CFAA one of the federal crimes that qualify as “racketeering activity” under the Racketeer Influenced and Corrupt Organizations Act, or RICO.  This would add RICO prosecutions to the long list of get-tough measures that Justice rarely uses against actual hackers because, well, because it can’t catch most actual hackers.

But that doesn’t mean the amendment would have no effect.  Because, like the CFAA, RICO creates a private cause of action against RICO violators.  Actually it’s not just a private cause of action.  It’s a bonanza. Plaintiffs can recover treble damages plus attorney’s fees by bringing suit against “racketeers.” And what do you know, just like CFAA civil suits, it turns out that most RICO civil suits have been brought against ordinary businessmen, “rather than against the archetypal, intimidating mobster,” according to the Supreme Court.

The Supreme Court and Congress have struggled for decades to curb abuses of civil RICO.  Now, almost casually, the Justice Department proposes to open another can of RICO liability for unintended defendants.

How would that happen?  First, treble damages under civil RICO can be claimed by any person “injured in his business or property by reason of” a RICO violation.  18 U.S.C. § 1964(c).    A violation of RICO occurs, inter alia, when a “person employed by or associated with any enterprise engaged in” interstate or foreign commerce participates, “directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”  (Sorry for the dense language; it may help to parse the language by thinking of a mobster who acquires partial ownership of a legitimate “enterprise” through threats of violence. He would be squarely covered by the provision, as long as he committed a  pattern of racketeering activity –- that is, more than one predicate crime.  But the words will sweep in far more conduct than classic mobster tactics, especially if Justice gets its way and violating the CFAA becomes a predicate offense.)

Pulling these elements together, let’s look at what the Justice Department’s proposal would mean for some of the unnecessary federal litigation now being brought under the CFAA.  We can start with the employer lawsuits against departing employees.  Employers who want to turn their CFAA claims into much more potent RICO claims would have to show that the departing employee committed two CFAA violations, which should be easy, since every unauthorized download is a new offense.  And, they’d have to show that they were injured in their business by reason of the racketeering; this they can do by showing the same damages that supported the CFAA case.  In short, on a quick look, the Justice Department seems to have created a massive incentive for companies to sue departing employees, and perhaps the companies they join, as racketeers.  Anyone who has a plausible CFAA case today will have a plausible RICO case once Justice gets its amendment.

Okay, another one: How about CDT’s favorite case – the pregnant worker accused of a CFAA violation because of excessive Internet use?  Well, she probably violated the rule on Internet use more than once, which makes for a pattern of racketeering, and she’s employed by an enterprise, in whose affairs she participated by misusing its computers.  The enterprise has been injured, too, by virtue of not getting her full attention at work.  What do you know? She sounds like a racketeer too!  It would be malpractice not to hit her with a counterclaim for treble damages and attorneys’ fees.

(At this point, you may be wondering why the Obama administration, of all administrations, wants to give employers even heavier litigation weapons to use against their employees. Beats me.  Maybe it has something to do with trial lawyers.  Maybe it’s just prosecutorial myopia.  James Baker’s testimony doesn’t even acknowledge the issue.)

OK, let’s try a harder problem.  You’re a copyright holder — Jon Stewart, say — and you’d like faster takedowns and more respect from YouTube.  Posting copyrighted material on YouTube is a violation of law and can lead to termination of your YouTube account.  The Lori Drew case tells us that the people who post clips in violation of that policy are using YouTube’s computers “in excess of authorization.” That’s a CFAA violation.  Do it twice and it becomes a pattern of racketeering, at least if Justice gets its way.  Now, the people doing the posting aren’t employees of YouTube, but they are “associated with” the YouTube enterprise, and they are participating indirectly in the conduct of YouTube’s affairs by virtue of their shocking CFAA violations.  What’s more, the Daily Show can claim injury in its business because it has lost viewers and ad revenue.  Presto!  Another racketeer takes the fall.  Maybe they’ll name YouTube’s parent, Google, as a co-conspirator just to keep it on its toes.

Oh, and what about you, dear reader?  Have you ever violated the terms of service on a website?  Hell, have you ever read them?  C’mon, I’ve seen the comments on my privacy and TSA posts. Are you sure yours didn’t violate the site’s proscription on “abusive or denigrating comments”?  Cause if you did it twice, that’s a predicate, and VC is an interstate enterprise that you are associated with and in whose affairs you are participating by virtue of your appalling violations of the terms of use and thus of the CFAA.  Best of all, VC has what strikes me as a pretty upscale readership.  Treble damages and attorney’s fees would go a long way toward finally monetizing my blogging habit.

(Had you going there, huh?  Actually, as far as I know, VC doesn’t have any terms of use for commenters, so fire away. You’re safe.)

I’m not a RICO lawyer, thank God, so maybe I’m oversimplifying what it takes to make out a civil RICO suit.  But, what the hell, the lawyers representing departing or pregnant employees aren’t RICO lawyers either.  If the claim against them is plausible on its face, they will face overwhelming pressure to settle, quite possibly by abandoning good claims, especially if their next employer is dragged in as a co-conspirator.  Ditto for the YouTube uploaders.

And in exchange for all this uncertainty and injustice, what benefit can we expect in fighting actual criminals?  About as much as we’ve gotten from the CFAA’s private right of action, which is nothing, and from RICO’s private right of action, which is less than nothing.

This is Hamburger Helper with a dose of cyanide.

UPDATE: Clarified with a reference to Google’s ownership of YouTube

Photo credits:

http://www.flickr.com/photos/arkangl/with/4709166389/

http://www.flickr.com/photos/like_the_grand_canyon/3853938360/lightbox/

The “Today” show was on as I dressed, preparing to go teach a First Amendment class. Then Matt Lauer interrupted an interview to show a gash, black and smoking, in one of the World Trade Center buildings. It was thought to be an accidental Cessna crash — a horrible thing but nothing you imagined you’d be commemorating ten years later. Transfixed by this improbable image, I noticed an airplane coming from the right of the screen. I remember thinking at that moment, “I can’t believe they’re letting aircraft fly in that area.” Then, as the plane disappeared behind the buildings, a fireball erupted from the other side. Soon there was the sickening sight of the buildings’ collapse. The university sent an email announcing that all classes were canceled.  

We began remembering 9/11 on 9/11, with continual replays of the attacks. For weeks thereafter, we wondered what fresh hell might be brought by the overhead sound of a jet engine. That day is still a gash of its own in the memory of any American who lived through it.

There were many tributes in the days and weeks that followed, but I can think of none more painful and also uplifting than this one, which came four months later.

On the first anniversary of 9/11, in September 2002, the Times Literary Supplement ran a review essay of mine on the meaning of memorials, monuments, and the skyline and landscape of New York City.  It talked about architecture and memorials, about how one memorializes an event like 9/11.  This was before much of anything had happened in the way of agreement to rebuild; it would have seemed strange to me then that so little would have happened in the decade since. (The book that has most helped me think about 9/11 in retrospect across the decade is one published a year ago, Scott Malcomson’s memoir of that period and the years following, Generation’s End: A Personal Memoir of American Power After 9/11.) (And thanks, Glenn, for the link.)

However, it seems to me that on this 10th anniversary of 9/11, the passages below from my review essay still stand pretty well.  The book under review is James Sanders, Celluloid Skyline: New York and the Movies, and it is a remarkable photography volume all by itself — not about 9/11, and completed before it, but instead about the way in which the skyline is New York City was represented in film — film frequently done in Hollywood, and drawing upon a massive archive of documentary photos of the New York skyline used to recreate the scenes outside windows of Hollywood sets.  Ironically, one of the greatest repositories of photos of New York from the old days is in Los Angeles.

When this review essay was published, some of my very sophisticated Manhattan friends smiled amusedly at my willingness to bend apparently any topic to my beloved Sierra Nevada.  They were wrong, however; the canyons of Manhattan are the Sierra Nevada of the East Coast, and their amused skepticism was like that of the fancy Europeans who laughed at the rube American painters with their wild landscapes of vertical mountains and gushing rivers and plains where buffalo roam and the skies are not cloudy all day — until they went for themselves and found out it was realism, not romance.  Those who doubt this need to Light Out for the Territory.  And this is much more closely related to the remembrance of 9/11 than one might think; it is the invocation of America, all of it.

May the victims and their families and loved ones find peace.  To those who went to war and continue at war, military and civilian alike, responding to that aggression — thank you for your service.  To those who have been lost in that service, again military and civilian alike, ave atque vale.

Comparing the Twin Towers to the architecture of the pre-war skyscrapers and to arguably the greatest of them, the Empire State Building, Sanders points out that the very shape of the Empire State Building, with its blocky base and sculptural setbacks that progressively narrow the tower as it climbs, visibly converts height into “movement, appearing to thrust upward with visible force”. The Empire State Building is not alone in this, however. Since the early 1920s, New York’s “towers had been consciously shaped as stepped, mountain-like masses . . . a shape generated by the city’s 1916 zoning law”, with the result that the upper office floors could be “by law no larger than one– quarter the area of the overall building site”.

The sense of up-thrusting mountains is not hyperbole. I write this passage not in New York City, but sitting in the shadow of the American landscape that (however odd it might seem) most conjures it up — the dramatic eastern slope of the Sierra Nevada mountains of California, where I was raised, jagged peaks pushing skywards from a blocky base; their energy always soaring upwards, from the floor of Death Valley to the top of Mount Whitney. I look out across the Sierra landscape, backlit at dusk, and in a strange way I see the Manhattan skyline as from across the Hudson in New Jersey or as in a Woody Allen movie. Yet for all the elegance and energy, peculiarly reinforcing the most urbane sophistication by deploying a sense of drama seemingly straight from the plein-air school of naive Western American mountain painting — craggy snowy peaks, crashing waterfalls, vivid sunsets — the mountain– peak aesthetic did not last in New York. New York’s pre-war skyscrapers’ height– into– motion designs, uniting kinetic energy with the faintest sense of ineffability, what Sanders calls the “Emerald City of Oz” skyline, were “rejected by the postwar generation of modern architects”.

The problem was, in part, the economics of wasted space in the upper floors, but also a shift in aesthetics. The setback shapes and perchlike peaks of the pre war skyscrapers were deemed romantic, irrational gestures; worse still were the crowded streets created by the wide bases . . . . But the answer was at hand. Smoothing their new buildings into sheer, boxy slabs; giving them flat, sheered-off tops . . . and setting them on broad, plaza-like open spaces would convert the old, thickly carved city into an enlightened landscape.

Hence the Twin Towers. It must be recalled, even at this time of WTC sentimentality, that they were nearly universally regarded as uninspired architecture of their day, the result of an overweening government agency, the Port Authority, that both blighted the skyline and, with their vast, cavernous plazas, ruined civic life at the base. The Trade Center, Sanders observes, had “forgotten why it was the tallest. The whole significance of height, its power to impress in more than an abstract, statistical sense — number of stories, distance from sidewalk to roof — had been lost.” Continue reading ‘Of 9/11 Memorials, Monuments, and the WTC’ »

Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s not a “tax” in the the constitutional sense. Rather, it is a regulation of commerce.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament’s refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of “commerce...among the several States” is a separate issue. The original meaning question for the mandate’s penalty is a commerce issue, not a tax issue.

Iran is to cyberwar what 1930s Spain was to airwar – contested ground where everyone tries out new technology and tactics.  After being on the receiving end of Stuxnet, which sabotaged the Natanz enrichment plant and showed that cyberweapons could replace cruise missiles, it looks as though the Iranian government has gone on the offensive.

The Dutch government’s electronic certification authority, DigiNotar, was compromised by a hacker in July of this year.  DigiNotar handled the hack badly, trying to fix the problem without disclosing it. As a result, DigiNotar’s credentials are being revoked by all of the major browsers.  This means that most web users will not be able to verify the bona fides of any site that DigiNotar has vouched for.  That includes a lot of Dutch government sites, and there are some reports that the Dutch government is leaning on Microsoft to keep the credentials operative for another week.  It also means that DigiNotar will be either out of business or buried in lawsuits that could also reach its parent, VASCO Data Security International.

The hacker who pulled off the compromise has posted messages claiming that the hack was revenge for Dutch peacekeepers’ surrender of thousands of Muslim men to Serb militias during the Balkan wars; the men were executed. The hacker says nothing about Iranian government sponsorship.

So why do I think the Iranian government was involved?

To understand that requires a bit of background about the role of certificate authorities on the Internet.  One of Netscape’s cleverest technological innovations was its solution to the problem of Internet eavesdropping.  It used public key encryption to encrypt the channel between a website and each user.  The user could look up a site’s public key and use that key to encrypt all of the user’s communications with the site.  (I’m oversimplifying here, but that’s the idea.)

The only problem was that the system was open to a “man in the middle” attack, where Mallory turns what’s meant to be a secure link between Alice and Bob into two secure links with himself as a secret hub and Alice and Bob as unsuspecting spokes.

Put another way, if an Iranian user asks Google for its public key, and he uses it to encrypt his communications, how does he know that he’s really using Google’s key?  If the Iranian government wants to read his Gmail, it could intercept his request and send him its own key.  He’d set up a secure channel with the government, which would then simply pass his login credentials on to Google.  For the rest of the session the government would sit in the middle, reading and passing on all the packets from both sides of the transaction.  Not good.

To prevent that, Netscape decided to bake a set of public keys into its browser.  The companies with the baked-in keys were certification authorities.  They could issue certificates vouching for the credentials of every site that wanted to offer secure, encrypted communications.

It was a great system, lightweight and very secure.  But only if the certification authorities kept their credential-signing process completely secure.  If they didn’t, then users would not know who was at the other end of the line, the website they wanted or a man in the middle.

Occasionally, of course, some fraudster would use fake documents to persuade a certification authority to sign credentials for a site the fraudster didn’t own.  That sort of thing could be fixed pretty easily.  Browser providers had already recognized that there had to be a way to revoke website certificates obtained by fraud, so browsers now do an online check each time they use a certificate; in essence, they ask an online server whether the certificate they are about to use has been revoked. So a single fraudulently obtained credential can be rendered harmless as soon as the fraud is discovered.

What happened to DigiNotar was not so easily fixed.  It appears that the hacker gained control of the credential-signing process for some weeks during July of this year, and he signed credentials for hundreds of online sites, including Google, Microsoft, and the CIA.

Now, that’s deeply embarrassing, and it probably would have been enough on its own to spell the end of DigiNotar.  But what came next was even worse.

Starting in August, according to investigators, online revocation checks for DigiNotar certificates jumped. Suddenly lots of people wanted to know whether the DigiNotar certificate for Google had been revoked.  This meant that hundreds of thousands of users were sure that DigiNotar was the authority that had signed Google’s credentials.  (In fact, Google signs its own credentials.) And 99% of the users asking about DigiNotar’s certificate for Google came from Iran. (Even the 1% of requests that didn’t come from Iran seem to have come from proxies and TOR routers in other countries, meaning they too could have been Iranian users.)

Clearly a lot of Iranian users had been fooled into thinking that DigiNotar had issued Google’s credentials.  I can only think of one way that could happen – if the Iranian government and ISPs were systematically intercepting packets bound for Google and saying, in effect, “I’m Google. Here are my credentials, signed by DigiNotar.  Let’s go secure and foil any eavesdroppers.” The user’s browser would say, “Wait a minute while I check to make sure DigiNotar hasn’t revoked your DigiNotar credentials, Google… Ok, you check out, let’s talk.”  As soon as the user started sending his login name and password to the fake Google, the middleman would use those credentials to log in to Google, which would set up a secure communications channel with the middleman.  The entire session would be encrypted unbreakably at every point in the chain save the one that mattered:  the government listening post in the middle. The Iranian government would be sitting pretty — Mallory between Alice and Bob.

Some observations, mostly additional reasons for thinking that this was an Iranian government operation, and what that means:

• The notes posted by the DigiNotar hacker make him sound like a flake and a braggart, hardly the kind of postings you’d expect from the Iranian secret police. Maybe this is misdirection, or maybe he pulled off the exploit and then handed over his loot to the Iranian government, voluntarily or involuntarily. But the implementation of the man-in-the-middle attack was so quick and so smooth that it looks to me as though the hacker was working with the government from the start.
• The same hacker who compromised Diginotar claims to have carried out attacks on Comodo and Globalsign, two other certification authorities. Both companies agree that they were hacked, although Globalsign is not admitting that its credentials were compromised. Again, compromising certification authorities is a great idea if you’re in the business of man-in-the-middle attacks; otherwise it’s got mostly nihilistic look-at-me-trashing-your-infrastructure appeal, which might make you wonder why this hacker has specialized in such attacks if he doesn’t work for the government.
• If this were an Iranian government op, the websites for which fake credentials were issued should be an Iranian government wish list — all the places where it most wants to be in the middle between the site and Iranian users. If so, the point of the fake CIA certificate wasn’t help hackers break into the CIA’s network. The point was to impersonate the CIA on line – to lure dissidents into setting up an apparently secure communications channels with a foreign intelligence service.  Iranian government paranoia about the CIA’s influence is so profound it’s almost flattering, and the Iranian government probably is kidding itself that the election protests were the result of foreign meddling, not the government’s unpopularity.
• In fact, the domains whose credentials were falsified do seem to be a kind of museum of Iranian government paranoia. Along with Google, Microsoft, and the CIA, the hacker made fake credentials for Mossad, MI6, Facebook, Skype, WordPress, Twitter, azadegi.com (an Iranian dissident site in Persian), Walla.co.il (a site in Hebrew), torproject.org, and Yahoo, along with others.  The full list is here.  In some ways, it’s an honor roll.
• It’s also a tell — more evidence that the attack on DigiNotar was government sponsored.  After all, if the DigiNotar hacker was really acting on his own, without government guidance, how did he manage to create so many certificates that would have so much value for an Iranian government man-in-the-middle attack?
• If this is cyberwar, it’s an Iranian government war against its own people.  And a very dangerous one. The flood of revocation checks coming from Iran continued all through August, meaning that anyone in that country who logged on to Gmail or Hotmail or the other honor-roll sites has probably lost control of everything – not just emails they sent in August but their passwords, their stored emails, their stored files, anything that could be accessed by passwords they used in August.
• As a result, DigiNotar’s security breakdown could foretell a new human rights disaster, with hundreds of thousands of victims. And, since we know the IP addresses that checked DigiNotar’s certificates, we could probably identify each victim individually.
• Which raises this question: We know from the online revocation checks that three hundred thousand Iranian users were fooled into using fake  DigiNotar certificates for Google. The same information should be available for Microsoft, Facebook, and every other fake certificate that was issued by the hacker.  Those numbers are the big story, and I don’t understand why reporters have dropped the ball on it, unless they don’t appreciate its significance.
• Mozilla has done a particularly good job of dealing with this issue, communicating more details earlier than most browser companies. Most recently, it called on the certification authorities it bakes into its browser to audit their security — and to put automatic blocks on some of the names, such as Google or Facebook, that are most likely to inspire man-in-the-middle attacks and least likely to change certificate authorities on short notice.  In contrast, Apple handled the whole affair pretty badly, taking days longer than the other big browsers to announce that it was revoking DigiNotar’s credentials.
• Iranian dissidents probably could protect themselves from these attacks by installing a browser extension called CertPatrol, which warns you if a site you’ve visited before has suddenly changed its certificate authority.  CertPatrol likely would have told all those Gmail users that, instead of going to a “Google” site that Google vouched for, they were instead going to a “Google” site that DigiNotar vouched for. They could also protect their Google account by turning on Google’s two-step verification process, which won’t let you log on from strange IP addresses until you’ve typed in a separate code sent directly to your phone.

As always when I venture too far into technical territory, I am quite aware that there are fine points I may be missing.  I welcome corrections and comments.

And it today’s football-related legal news, the Washington Post reports that Washington Redskins owner Daniel Snyder has dropped his defamation suit against the Washington CityPaper over an unflattering story about him.

Snyder had sought $1 million in general damages as well as unspecified punitive damages from the weekly paper; its parent company, Creative Loafing; and journalist Dave McKenna. McKenna’s story in November, “The Cranky Redskins Fans’ Guide to Dan Snyder,” was an unflattering account of Snyder’s tenure as owner of Washington’s NFL team, with an encyclopedia-style listing of alleged missteps and public-relations controversies over the years. . . .

But people close to Snyder said the team’s owner felt vindicated when City Paper’s publisher, Amy Austin, acknowledged in a story published in April that one aspect of the story was not meant to be construed as literally true. . . .

In his original lawsuit, Snyder said he was defamed by several parts of the article, including the suggestion that he had been kicked out as chairman of the board of the Six Flags amusement park chain and had gone “all Agent Orange” by cutting down a stand of trees on federally protected land that blocked river views from his Potomac mansion in 2004. He also objected to the story’s assertion that he had been “caught forging names” on consumers’ long-distance phone contracts while he headed a marketing firm, Snyder Communications, before taking over the Redskins in 1999. He denied all of those allegations.

Earlier this year, Bloomberg reporters sneaked onto a conference call that Swatch held with invited securities analysts.  The reporters taped Swatch executives’ two-hour exchange with the analysts, even though the call-in preliminaries included warnings that the call would be recorded for Swatch and that no other recordings should be made. When Bloomberg started selling its own transcript of the call, Swatch sued.

You might think that Swatch had some sort of privacy claim – that Bloomberg violated the wiretap or computer hacking laws.  In fact, though, Swatch registered its recording of the call with the US Copyright Office and sued Bloomberg for infringement.

Bloomberg’s actions are controversial, for sure.  But how can copyright extend this far?  We live in a world where more or less everything can be recorded. If Swatch has a copyright claim here, what about former Senator George Allen? Having learned from his macaca moment six years ago, can he announce that he’s recording all his campaign events, so no one else can?  What about a police officer who objects to bystanders using their phones to film him in action?  Can he point to his cruiser-cam and accuse the bystanders of infringing copyright?

That seems to be the view of Manhattan federal judge Alvin Hellerstein, 78, who approved Swatch’s copyright claim with little display of concern about its implications.  Denying the motion to dismiss, Judge Hellerstein blandly found that Swatch had met the requirements for claiming copyright: (1) the call was “fixed” on tape and (2) Swatch executives had exercised creativity during the call.  (Point 2 might give Swatch investors pause, of course, but that’s a different question.)

Bloomberg will be free to assert a “fair use” defense at trial, but that’s cold comfort, especially if, as I suspect, Swatch’s registration of copyright allows it to seek massively punitive statutory damages.

You might think that Judge Hellerstein was forced into this unappetizing precedent by a broadly written copyright law.  But he wasn’t.  In fact, the statute as written seems to require that Swatch give Bloomberg and everyone else 48 hours’ notice before Swatch could turn the call into a copyrighted performance.  But the court adopts Nimmer’s view and refuses that reading of the statute because limiting copyright damages claims “would serve no purpose.”

And I suppose that’s true, as long as you can’t imagine the law serving any purpose other than enforcing copyright.

UPDATE:  Corrected typo; with thanks to “great unknown.”

A wildly disproportionate percentage of law school faculty graduate from a very few top law schools, especially Harvard and Yale. Not surprisingly, graduates of these schools turn to their mentors and references for advice on how to navigate the teaching market.

Some of these professors give sound advice. But the very fact that these folks wound up at the very top schools means that their experiences were exceptional, and they may not have a great sense of the overall market. In addition, for obvious reasons professors at these schools are inclined to think that the market is much more of a meritocracy than it actually is (which isn’t to say that merit doesn’t play a huge role in hiring, just that many other factors also play a role; it’s not that the top schools don’t hire meritorious candidates, it’s that meritorious candidates don’t always get hired by the top schools, or, in some cases, get any jobs at all).

Here are a few examples of terrible advice that I’ve heard students get from their references at top ten law schools:

(1) Go on the job market directly out of your clerkship, with no practical legal experience (and no Ph.D.) because it will signal how serious you are about academia. (This may have worked in the old days, but ONLY if you had a Supreme Court clerkship, which the individual in question did not.)

(2) Don’t bother going into the legal academy unless you can get a job at a top fifteen law school, otherwise you are better off working at a law firm; no one pays attention to what people at lower-ranked law schools have to say, so you will just get frustrated if you wind up at one of them. (Actually, being a law professor at any law school with a good academic environment is one of the best jobs in the world; people do move up; and people do pay attention to good scholarship emanating from outside the top 15).

(3) Prominently display your (otherwise irrelevant) ideological credentials (in this case, officership in a Federalist Society student chapter) on your teaching applications. (Why? Why? Why?)

(4) Sending out a law review article? Start with the top 20 law reviews, and see what happens. (That works if you’re teaching at Harvard or Yale, not if you aren’t even a professor yet.)

(5) Attended a lower-ranked school first year of law school, and then transferred? If anyone asks about it, be dismissive of your original school, to show that you always knew you were better than that. (Any committee you interview with will have at least one member who has friends at that school and will be insulted for them, plus word will get back to your original school where you will have now lost your friends.)

I could go on. But the basic point is, you should double-check any advice you get from your elite-law-school references with professors teaching at less lofty schools, especially ones who have served on appointments committees. Even if you only have a passing acquaintance with such individuals, they are usually quite willing to spend a few minutes to help out future academics.

Mekbib Adgeh, who filed a Complaint / My Legal Right to Have More Than One Wife, has now been rebuffed by the Tenth Circuit, in Adgeh v. Oklahoma, which affirmed the District Court’s rejection of the claim. It’s an interesting question whether the Oklahoma Religious Freedom Restoration Act might provide the religious exemption that Adgeh seeks, and that the Free Exercise Clause doesn’t provide; but that is a story for another day and another court (presumably an Oklahoma state court), should Adgeh choose to file suit in that court.

There is also the question whether, given Lawrence v. Texas, a state may outlaw plural religious marriages where the parties don’t try to make any legal claims based on those religious ceremonies; for more on that, see the majority and the dissent in State v. Holm (Utah 2006). And there is the question of who, if anyone, would want to marry Mr. Adgeh, given the reasoning in his Complaint.

The decision is Sarhan v. Holder (Sept. 2, 2011). An excerpt:

This petition presents the question whether a woman who will fall victim to an “honor killing” at the hands of a family member is entitled to relief either under the Convention Against Torture (CAT) or under the procedure known as “withholding of removal.” For the latter, she must prove that she is a member of a “particular social group” within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3). We hold that she has successfully established that she is. In addition, for purposes of both the CAT and withholding, we find that the decision of the Board of Immigration Appeals (the Board) finding that she has not shown a clear probability that she will be killed on account of her membership in that social group if she is returned to Jordan is not supported by substantial evidence. The Board failed to consider significant evidence that she presented that supports a finding that the Jordanian government is currently unable or unwilling to protect her....

Nuha Sarhan is Sarhan and Disi’s sister-in-law (she is married to Sarhan’s brother). [Sarhan and his wife Disi are the petitioners in this case. –EV] There is a history of animosity between Nuha and her in-laws.... [Nuha] started a rumor that Disi had committed adultery. Nuha told this story to her mother, who took the news to Amman, Jordan, and there informed Disi’s family — including Disi’s brother, Besem Disi — that Disi had been unfaithful and had dishonored the family. Disi first heard about these false accusations in 2003, when Sarhan’s parents visited the United States and told her that these rumors were swirling in Jordan. Neither Sarhan nor the rest of his family believe that anything Nuha has said is true, but Disi’s brother Besem is convinced that Disi has committed adultery and has ruined the family’s reputation. Sarhan’s parents told Disi during their visit that Besem planned to kill her when she returned to Jordan in order to restore the family’s honor....

Besem has long been obsessed with family honor, as defined by religious and social norms in Jordan, and he cannot be deterred from murdering his sister in response to the rumors Nuha started. Besem’s persistence is perplexing given the evidence that Nuha has manufactured scandals similar to this one in the past. Before sullying Disi’s name, Nuha once accused Sarhan’s mother (her own mother-in-law) of infidelity; this slur caused Sarhan’s father to attempt an honor killing against his wife. Thankfully, Sarhan and his brothers intervened to save their mother’s life, and the family later discovered that Nuha had made the whole thing up. Nonetheless, Besem is resolute, because he apparently believes that the rumors alone have harmed his reputation in the community enough to warrant killing Disi — the truth no longer matters. In 2006, Besem visited Disi in Chicago and told her that he planned to murder her when she returned to Jordan. In the proceedings in the Immigration Court, Disi testified that Besem said, “[W]hen you come back to Jordan, I’m going to kill you. Here [in the United States], I can’t do, because there is a penalty for this, but in Jordan, nobody can do for another killing.” Sarhan and his father have corroborated the sincerity of Besem’s threat....

This brings us to the role of the Jordanian government. “Persecution is something a government does, either directly or by abetting (and thus becoming responsible for) private discrimination by throwing in its lot with the deeds or by providing protection so ineffectual that it becomes a sensible inference that the government sponsors the misconduct.” ... After reviewing the evidence of the Jordanian government’s treatment of honor crimes, we conclude that the record permits no conclusion other than that the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings....

According to the State Department’s 2007 report, during that year there were “17 reported instances of honor crimes that resulted in the death of the victim, although activists reported that additional unreported cases likely occurred. A November [2007] UN Development Fund for Women study stated that 25 percent of honor crime victims in the country were killed merely because they were suspected of involvement in an illicit relationship.” U.S. Dep’t of State, Country Report on Human Rights Practices for Jordan (2007). At oral argument, the government called our attention to the fact that this amounts to 17 honor killings during a one-year period in a country with a population of 6 million. Apparently it meant to suggest that the low number of honor killings means it is not much of a problem. We do not see the logic; a common (though not inevitable) feature of persecution is that the victims come from minority populations. That there are few publicly recorded instances of killings within a particular social group does not mean that the U.S. government is free to remove someone who has experienced a direct and credible threat of such a killing. Nor does it address the twin problems of underreporting and measures short of killing (such as mutilation) that take place....

We find similarly unconvincing the unadorned fact that all 17 honor crimes committed during 2007 were prosecuted. Prosecution at times is an empty gesture. The sentences given out in Jordan for honor crimes show that prosecutions of honor crimes result in little more than a slap on the wrist. The State Department put it this way: “While the defendants are almost always universally found guilty, defendants often received token sentences, with the charges often reduced from premeditated murder to manslaughter. Many men convicted of an honor crime received minimal prison sentences, usually no more than six months.” A six-month sentence for this kind of premeditated murder, when all other murders are punished much more severely, sends a strong social message of toleration for the practice....

For a Ninth Circuit case from earlier this year, reaching the same result, see this post.