The Volokh Conspiracy

This new Quinnipac study of swing state voters in Florida, Ohio and Pennsylvania shows the Democratic Party slightly more popular than the Republican Party (and President Obama opening a 47% – 39% lead over Mitt Romney in Pennsylvania):

Yet these same voters — including voters in Pennsylvania — want the Affordable Care Act either repealed:

Or found by the Supreme Court to be unconstitutional:

H/T Jim Geraghty

I am a million mile flier on United Airlines — that’s actual miles flown, without any bonuses — but lately have been disenchanted with the airline’s treatment of its frequent fliers.  But I have no beef like musician Dave Caroll’s (from this website):

Musician Dave Carroll had difficulty with United Airlines. United’s baggage handlers damaged his $3500 custom guitar, and he spent over 9 months trying to get United to pay for damages.

During his final exchange with the United Customer Relations Manager, Dave stated that he was left with no choice other than to create a music video for YouTube exposing United’s lack of cooperation. The manager responded: “Good luck with that one, pal.”

Dave shot and posted his video on YouTube. The video has since received over 11 million hits. (You’ll soon see why!)
United Airlines contacted Dave and attempted settlement in exchange for pulling the video. Naturally Dave’s response was: “Good luck with that one, pal.”

Taylor Guitars sent Dave two new custom guitars in appreciation for the product recognition from the video that has lead to a marked increase in orders.

Here is the video:

And I was thinking about writing a letter. Now that you’ve seen the video, you can visit Dave’s site here. He is selling a book entitled, United Breaks Guitars, which the publisher describes as follows:

Hat Tip, Mike Rappaport.

Activist groups of various political stripes are increasingly urging boycotts of companies not because of the companies’ own behavior, but because of the behavior or speech of those the companies patronize or support. The aim of such boycotts is not to affect corporate behavior as much as it is to create economic pressure on third parties or dry up support for political opponents. Former FEC Chairman Brad Smith has an op-ed in today’s WSJ on the danger of such “secondary boycotts” to civil society.

It’s becoming hard to know with whom one can do business.

We’ve been told that if you don’t like what Rush Limbaugh or Glenn Beck says on the radio, you should not only not listen to their shows, you should boycott businesses that advertise on their shows. We are told that if you don’t like the activities of the American Legislative Exchange Council—a nonpartisan nonprofit that provides a meeting ground for conservative state legislators to share ideas—you should boycott companies that support the council. . . .

All these examples are what are called “secondary boycotts”—attempts to influence the actions of the target by exerting pressure on a third party. Secondary boycotts should not be confused with primary boycotts. A decision not to patronize a business that discriminates on the basis of race is an example of a primary boycott. Primary boycotts—used to great effect during the Civil Rights Movement—have a long and often laudatory history.

But secondary boycotts have long been recognized as harmful to civil society. They rend the social fabric by making it difficult for people to simply live their lives.

The problem, in part, is that one boycott can lead to another. Progressive groups have gone after corporate supporters of the American Legislative Exchange Council because it supports voter identification requirements. Yet, as Smith notes, most Americans support such laws, so what would happen if conservative groups targeted corporations that support anti-voter-ID groups. The threat of such counter-boycotts is not merely hypothetical. Just as pro-gay marriage groups have targeted companies for donating to anti-gay marriage groups (even if the donations were for wholly unrelated reasons), anti-gay marriage groups have begun organizing boycott campaigns of their own. Progressive groups were able to get some advertisers to drop Rush Limbaugh, but some conservatives responded by encouraging boycotts of companies, such as Carbonite or Arby’s, that succumbed to such pressure.

Secondary boycotts are particularly destructive when they target groups for supporting political speech. As Smith notes, the point of such boycotts is not to alter primary behavior, such as ending discriminatory practices, but to dry up economic support of unpopular speech. “The power of ideas is abandoned for the power of economic coercion.”

If it’s acceptable to place economic pressure on those who support political ideas with which one disagrees, where should this principle end? Should employers be allowed to discriminate based upon political beliefs or contributions? If unions are encouraging boycotts of business that do not declare their opposition of Wisconsin Governor Scott Walker, should employers refuse to hire those who embrace the anti-Walker campaign? Notes Smith, “Any decision not to hire would be, in effect, a secondary boycott of the applicant. This type of thinking will almost certainly lead to the stifling of many valuable political ideas and innovations.” This doesn’t mean secondary boycotts should be illegal, but not everything permissible is also wise.

Secondary boycotts may seem like an effective tool for progressive causes, but they also entail substantial risks. The culture of secondary boycotts threatens to balkanize all of civil society along political lines, making it ever more difficult to espouse unpopular or minority views.

People have a right not to do business with companies or individuals. But blacklists—never a healthy part of political debate—endanger the very commerce that enriches us all.

“Bleeding heart libertarian” political philosophers Kevin Vallier and Matt Zwolinski have written responses to my post expressing some reservations about some BHLers embrace of the idea of “social justice.” They also comment on critics like David Friedman, Bryan Caplan, Mike Rappaport, and Todd Seavey, who have expressed related concerns. Both Vallier and Zwolinski make some good points. But I don’t either of them really addresses the issues I and some of the others raise.

Vallier attempts to answer the criticism that the BHL conception of “social justice” is vague and unclear by providing a definition of the concept:

How does the term “social” modify the term “justice” such that we are left with an important and illuminating concept that is a kind of justice that libertarians should accept? I’m going to give a Rawlsian answer to this question by holding that social justice is justice with regard to the arrangement of a society’s basic structure… Rawls defines a society’s basic structure as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next….

[A] basic structure… rests on certain principles and shared ideas that are the subject of moral and political evaluation.

I certainly agree that a society’s “basic structure” is subject to moral evaluation and that an unjust basic structure should be rejected (at least if superior alternatives are available). However, virtually all political theorists accept the same idea, including libertarians who reject the idea of “social justice,” such as F.A. Hayek (who devoted much of his scholarship to trying to figure out what a more just basic structure of of society should look like). If social justice is simply used to denote the idea that the basic structure of society should be just in some general sense, then it’s not a very useful term because almost every political philosophy turns out to be committed to it. Nazis, communists, socialists, libertarians, liberals, and conservatives all agree that society should have a just basic structure. Where they differ is on the question of which basic structure is actually the most just, and on the criteria for assessing that question.

This definition of social justice also does not conform to the most widely accepted uses of “social justice” in contemporary discourse, which usually have to do with alleviating poverty and promoting economic equality. That said, I recognize that this may be a case where some academic political philosophers use a term in a different sense from that used by laypeople and scholars in other fields.

Zwolinski interprets me and some of the other critics as advocating utilitarianism and puts forward various standard philosophical arguments against utilitarianism. I agree with many of these arguments. However, they only count against a theory that holds that utilitarianism is the only standard by which the morality of our actions should be judged. That is not my view. I reject both absolute utilitarianism and absolute nonutilitarian rights theories. Utilitarian considerations should serve as a constraint on rights claims and vice versa. For example, we should not endorse an absolutist theory of rights that holds that we can never restrict freedom of speech even if doing so is the only way to keep a totalitarian regime from coming to power and slaughtering millions. On the other hand, we also should not embrace an absolute utilitarianism under which we would have to let sadists torture innocent children so long as the evidence showed that pleasure of the torturers was greater than the pain suffered by their victims.

At what point should rights be sacrificed for utility or vice versa? If I had an air-tight answer to that question, I would be a great political philosopher myself. Sadly, I don’t. But even though I don’t have a good theory for handling difficult borderline cases, I think it’s still easy to recognize that we shouldn’t sacrifice huge amounts of utility for minor rights protections, and neither should we do the opposite. Thus, we should not allow civilization to be destroyed by an asteroid strike, even if avoiding this fate requires some infringement on property rights. Similarly, we also shouldn’t let “utility monsters” gobble up small children. In my view, genuinely difficult tradeoffs between utility and rights

For reasons outlined by Mike Rappaport here and here, and earlier by David Friedman, I think utilitarianism also does a better job than “social justice” in explaining why libertarians (and others) should be concerned about poverty and economic well-being. One can recognize that without being committed to the idea that utility is the one true moral value that trumps all others.

I’ve posted a new, short essay on SSRN, “The Senate and Hyper-Partisanship: Would the Constitution Look Different If the Framers Had Known that Senators Would Be Elected in Partisan Elections?”  The essay was written for a symposium sponsored by the Georgetown Journal of Law and Public Policy on the topic of “Hyper-Partisanship and The Law.”

Here’s the Abstract:

This article is a contribution to the symposium “Hyperpartisanship and the Law,” sponsored by the Georgetown Journal of Law and Public Policy. The article considers the implications of direct election of United States Senators via partisan elections for the Constitution. As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances. That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators. This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.

In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism. Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation. Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway. Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.

My impetus for writing this was the farcical Clinton impeachment proceedings many years ago, in which the Senate bore no real resemblance to the sort of jury contemplated by the Framers.  While it is plausible to think of an indirectly-elected Senate (at least how the Framers conceived of it) performing that function, that trial demonstrated the unsuitability of the currently-devised Senate in doing so (although it is not clear what the Framers might have put in its place).  That prompts some additional considerations on nominations, the treaty power, and other ruminations.

From Neal v. Neal (Idaho 1994):

Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.

Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.

The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.

Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive.” The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal’s affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.

Note that the reasoning isn’t limited to married couples, but would also apply to other lovers who had an understanding of fidelity. Nor would it just apply to cheating on a relationship in which fidelity was understood: It could also apply to other situations where plaintiff argues that he or she wouldn’t have consented to sex with defendant had he or she known certain things about the defendant — e.g., that the defendant was already married, or that the defendant had been a prostitute at some point in the past, or that the defendant had lied about something in order to get plaintiff into bed, and so on. It’s a pretty broad theory that the Idaho Supreme Court adopted.

Now I should say that the court’s theory is not illogical: The principle that consent procured by lies, or by failure to disclosure something that plaintiff and a reasonable person would have likely found material, is not a valid consent is well-established in other contexts. The main objection, I think, is pragmatic: The theory would turn a vast range of relationship misconduct into a basis for litigation, with lots of opportunity for fraudulent claims. And the question is how to weigh this pragmatic objection with the argument that consent procured by deceit or nondisclosure of highly material facts is not consent (especially in a civil case).

The case is apparently unusual, at least outside cases of lies about sexually transmitted disease, or intentional concealment of such a disease. For the one case I know of involving a similar approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was infertile, see Barbara A. v. John G. (Cal. Ct. App. 1983) (2-to-1), disagreed with by Perry v. Atkinson (Cal. Ct. App. 1987). For a different approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was fertile, see Conley v. Romeri (Mass. App. Ct. 2004):

There is no indication that the defendant’s statement in July, 1996, after several dates, that he had been told by a fortune teller that he would have six children was made with the intent to induce the plaintiff to have sexual intercourse. At that stage of their relationship, such a statement may be seen only as an inducement to continue dating. There were no discussions between the parties about having children together, or of marriage. Moreover, the plaintiff’s feeling that she wasted time with the defendant because her biological clock was running does not constitute a battery. We conclude, as a matter of law, that the plaintiff’s consent was not vitiated, and that summary judgment properly was allowed for the defendant.

Over at Prawfs, Sam Bagenstos flags a new investigation by the DOJ Civil Rights Division:

Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act). The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults. In announcing the investigation, AAG Perez said that “[i]n the past three years, there have been at least 80 reported rapes in Missoula. At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months.” This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense — the guarantee that state and local law enforcement will protect all citizens equally against private depradations.

. . . [W]hat breaks new ground is not the investigation of the University — that’s standard fare for Title IX investigations — but the broader investigation of the local Missoula police and prosecutor’s office. This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police. This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense. Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison). And, as Randy Kennedy’s work highlights, it has been a major problem for racial minorities who are victims of crime as well.

And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court. Discrimination is likely to be impossible to prove in any individual case. . . [I]n Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts. . . .

So DOJ is likely the only entity that can bring these sorts of claims into court. I still wouldn’t underplay the difficulties of proof here. But the Civil Rights Division’s efforts to attack the problems of . . . failure to protect crime victims are incredibly important.

I favor aggressive investigation and prosecution of sexual assault crimes. With that said, I’m a bit puzzled by the legal theory animating DOJ’s investigation. If equal protection requires similar treatment of similar things, what is the standard for measuring whether sexual assault crimes are being treated equally? Do we compare prosecutions for sexual assaults in cases with female victims with prosecutions for sexual assaults in cases with male victims? Or do we compare prosecutions for sexual assaults as a whole with prosecutions for other crimes that are generally deemed equally serious? And if the latter, does that mean that the federal constitution’s Equal Protection clause mandates a particular approach to allocation of state and local law enforcement resources in sexual assault cases? This isn’t at all my area, so I’m not sure what to make of this. But at least at first blush, I’m not sure I see a proper role for federal intervention here.

The Wilmington News-Journal reports on a controversy at the University of Delaware involving what may or may not be an attack motivated by sexual orientation:

A University of Delaware student charged with a hate crime [and battery] after allegedly shoving a gay student to the floor at a house party in Newark earlier this month insists that he has been “falsely accused.”

Speaking to The News Journal on Sunday, Derek DiDonato, 21, a junior studying criminal justice, denied allegations that he made derogatory statements about 19-year-old Zachary Baum’s sexual orientation during an early-morning altercation on April 15 inside the East Cleveland Avenue home that DiDonato rents with several roommates.

Now I don’t know who’s telling the truth here, but the following passage struck me as noteworthy, because it shows how a focus on “sensitivity” often distracts people from what really matters:

Wilmington criminal-defense lawyer Eugene Maurer, who is representing DiDonato, accused Baum of using the incident to seek attention.

“We feel this may have been an opportunity that was seized upon by the young man whereby he could politicize this situation, to draw attention to it,” Maurer said. “I think we’re going to be able to demonstrate in part that may have been part of his motivation.”

Baum called that criticism “terribly offensive.”

“I was a victim of an attack,” Baum said. “I didn’t ask to be attacked. To make that kind of allegation is so insensitive.”

Either Maurer’s theory is correct or it’s not. If it’s correct, the incident wasn’t motivated by sexual orientation, and Baum was making up the claim about DiDonato’s motivation for political purposes — indeed, if DiDonato is correct in saying that Baum started it and DiDonato was defending himself and trying to eject an unruly guest — then Maurer’s assertion is perfectly legitimate. If the incident wasn’t motivated by sexual orientation, but Baum sincerely believed that it was so motivated, then Maurer might be mistaken but is making a plausible assertion in defending his client.

On the other hand, if the incident was motivated by sexual orientation, and Baum is telling the truth, then the problem with Maurer’s response is that it’s incorrect. Maybe it’s innocently incorrect, if Maurer thinks his theory is right but it’s not. Maybe it’s deliberately false. But in any event, if it’s incorrect it should rightly labeled be as such — but quite regardless of whether Maurer’s statement is “so insensitive.”

Now Baum is a 19-year-old student, and may not be as precise or articulate as he ought to be; and all of us are imprecise or inarticulate on some occasions. Perhaps he meant “insensitive” just as loose shorthand for “wrong” or some such. I don’t mean to fault him personally for a poor choice of words. Rather, the problem, I think, is with a cultural norm that turns too many factual questions into questions of sensitivity and offensiveness, and that leads people to talk about whether an allegation was “insensitive” and “terribly offensive” when the real issue is whether it was true or false.

The Wisconsin State Journal reports,

The Madison School District has agreed to pay $31,454.57 in legal fees after the State Journal won an open records lawsuit over employee sick notes related to last year’s Capitol protests ….

Prior to the notes being released, the State Medical Examining Board disciplined nine doctors for their involvement in issuing notes during the protest. After the State Journal found at least 15 doctors in the notes who hadn’t been disciplined, the Medical Examining Board decided to investigate 11 additional doctors.

The lawsuit was filed under state public records law, in the wake of the controversy over whether the sick notes were based on honest claims of sickness; the newspaper agreed to have the employee names blacked out to preserve employee privacy.

Speaking of Madison, this James Madison quote — made about support for education funding, but often also used by supporters of public access to government records — might be relevant:

A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will ever govern ignorance; and a people, who mean to be their own governors, must arm themselves with the power which knowledge gives.

A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla.  If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit and the court’s reasoning in some detail:

In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district
court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

Yesterday the White House released a new Executive Order on “Promoting International Regulatory Cooperation.” The stated purpose of the E.O. is to encourage the harmonization of regulatory requirements to simplify regulatory compliance, reduce costs for transational companies and facilitate international trade. As OIRA Administrator Cass Sunstein explains in a White House release:

The new Executive Order will promote American exports, economic growth, and job creation by helping to eliminate unnecessary regulatory differences between the United States and other countries and by making sure that we do not create new ones.

As I discuss in an op-ed in today’s Wall Street Journal, the order makes clear that in eliminating such differences, we will respect domestic law and will not compromise U.S. priorities and prerogatives. Even while insisting on those priorities and prerogatives, we can eliminate pointless red tape. Today’s global economy relies on supply chains that cross national borders (sometimes more than once), and different regulatory requirements in different countries can significantly increase costs for companies doing business abroad. As the President’s Jobs Council recently noted, international regulatory cooperation canreduce these costs and help American businesses access foreign markets. Such cooperation can also help U.S. regulators more effectively protect the environment and the health and safety of the American people.

Sunstein also made the case for the E.O. in the WSJ, providing an example of the sort of harmonization the Administration has in mind:

Today’s action builds on many other administration efforts to eliminate unjustified regulatory costs and to reduce burdens by promoting international regulatory cooperation.

One example: The U.S. has long required employers to use warning symbols to inform employees of potential safety hazards. Other nations require warnings, too, but in many cases they mandate the use of different symbols. The result of the disparate requirements is to impose pointless costs on those who do business in more than one nation. Why should chemical manufacturers have to create multiple labels for the same product in different countries?

To address this problem, the Department of Labor recently harmonized its labeling requirements with those of many nations around the world, a reform that is projected to save American businesses more than $475 million each year.

This E.O. seems to be a fairly standard good-government reform that could reduce regulatory burdens and facilitate compliance without altering substantive protections. SO it should be non-controversial, right? Apparently not. As RegBlog reports, Public Citizen argues the E.O. is a “smokescreen for deregulation.” It’s almost as if any measure to reduce regulatory costs is necessarily suspect, in and of itself.

The Center for Progressive Reform, a pro-regulatory group, is likewise suspicious. It attacked the Administrative Conference of the United States for co-sponsoring an event yesterday with the U.S. Chamber of Commerce on “Next Steps & Implementation of ACUS Recommendations on: Incorporation by Reference & International Regulatory Cooperation.” Even though the ACUS has urged greater attention to international coordination, teaming with the Chamber to support a discussion of the issue is apparently “over the line” because of the Chamber’s “enormously destructive crusade against regulation.” And yet this “crusade” was nowhere in evidence on the conference program. Most of the speakers at the event were federal government officials, including Sunstein who spoke about the new E.O. (The agenda is here.) Indeed, other than C. Boyden Gray, former U.S. ambassador to the E.U., and one Chamber official who moderated one panel, there was no one on the program who could be plausibly characterized as “anti-regulation,” and neither the Chamber nor Ambassador Gray is much of an anti-regulatory zealot. So the ACUS’ offense seemed to be no more than encouraging discussion of its own recommendations with those who are affected by regulatory harmonization. Sometimes it seems groups that self-identify as “pro-consumer” or “pro-environment” could be more accurately described as “pro-regulation.”

Most of the commentary on my latest post advocating the transformation of May Day into Victims of Communism Day has been positive. A few people, however, have argued that some other date is more appropriate than May 1. Some claim that it is wrong to use May Day because of its former status as a labor union holiday in pre-communist days. I responded to this argument in a update to my original post:

I don’t deny that May Day has a pre-communist history. However, for many decades it was and still is the major holiday of international communism. To try to disssociate it from that history is much like trying to separate the swastika from the Nazis on the grounds that it was once an ancient religious symbol unrelated to Nazism. Many of those who celebrate May Day since the fall of communism in the USSR are either communists themselves or radical leftists sympathetic to communism. Not all are, of course. But the communist connection is is clear and recognized around the world. No other date – including the anniversary of the Nazi-Soviet Pact is so clearly symbolic of communism as an international phenomenon…. Nations that wish to commemorate “workers’ rights” should do so on some date not associated with brutal totalitarian dictatorships, as the US and Canada have done by creating a separate Labor Day.

In my very first post on the subject, I noted the possibility of using November 7, the anniversary of the communist seizure of power in Russia. However, I also noted that this alternative is inferior to to May Day because it focuses primarily on one communist nation, whereas in reality the crimes of communism were international in scope. Bad as they were, communist atrocities in the USSR were outstripped in magnitude by those in China, and by Cambodia in terms of the proportion of the population murdered. North Korea probably takes the prize as the most thoroughly oppressive communist regime, controlling even more aspects of its people’s lives than the USSR under Stalin.

A few correspondents have suggested expanding “Black Ribbon Day,” the August 23 anniversary of the 1939 Nazi-Soviet Pact, which has been endorsed by Canada and the European Parliament. Potentially, this day of commemoration could be expanded to cover all communist crimes, not just those directly associated with the Nazi-Soviet Pact. Unfortunately, however, August 23 suffers from the same shortcoming as November 7. It too focuses exclusively on the crimes of just one communist regime. In addition, Black Ribbon Day understandably focuses on the crimes of both the Nazis and the USSR. We already have a memorial day devoted to the Holocaust, and the victims of communism deserve a day of their own.

In sum, I still think that May 1 is the best possible date for Victims of Communism Day. No other day is both clearly associated with communism and at the same time not primarily associated with one particular communist dictatorship. That said, the best should not be the enemy of the good. It is more important that we have a widely recognized Victims of Communism Day than that we have it on the best possible date for that purpose. If a broad consensus develops in favor of August 23, November 7, or some other date, I will certainly support it.

UPDATE: Roderick Long responds here:

I strongly disagree with the suggestion by Jason [Brennan], Ilya, and others to rename May Day “Victims of Communism” Day.

The fact that Communist regimes have attempted to co-opt May Day is no reason to imitate them in a second co-opting attempt. May Day not only originally was, but still is, primarily a celebration of workers’s movements generally, not of the butchers of Kronstadt. The holiday is commemorated all over the world; it is not now and never has been mainly a Communist regime holiday…

Jacob [Levy] adds, rightly, that the war on May Day is “pointlessly antagonistic toward social democrats”; but I would just add to this that it’s not just social democrats who would be pointlessly antagonised. Free-market libertarians have been part of the labour movement since the beginning, from the individualist anarchists of the 19th century (including Thomas Hodgskin, Benjamin Tucker, Lysander Spooner, Ezra Heywood, Francis Tandy, Dyer Lum, Voltairine de Cleyre, and even to some extent Herbert Spencer, Gustave de Molinari, and Wordsworth Donisthorpe)…..

No amount of historical revisionism can overcome the reality that Communist regimes not only “attempted” but actually succeeded in “coopting” May Day. For many decades, it was and is the main holiday of international communism. Many of those who continue to celebrate it today are either communists themselves of sympathetic to communism. Just as there were and are non-Nazis uses of the swastika, there are non-communist uses of May Day. But that does not overcome the overwhelming totalitarian associations that have arise with both.

As for the issue of libertarian support for “the labour movement,” a lot depends on what one means by “labor movement.” Libertarians certainly have supported the rights of workers to freedom of contract and other economic liberties. On the other hand, libertarians have been deeply at odds with the vast majority of what is usually called the labor movement because that movement favors extensive government intervention in the economy, including numerous restrictions on the economic liberties of workers. That is certainly true of those labor movement activists who continue to celebrate May Day. And no more than a tiny handful of libertarians commemorate May Day today as anything other than a time of mourning for the victims of communism. Even if there is a labor unionist or “social democrat” case for keeping May Day as is, there is certainly no defensible libertarian case for it.

As noted above, I take seriously the possibility that it may be politically easier to establish a Victims of Communism Day on some other date. If we can get a broad consensus on November 7 or August 23, but not May 1, so be it. On the other hand, we should not lightly give up on the best available date for this commemoration. For that reason, we should urge “social democrats” to recognize the meaning that May Day has taken on over the last century and to pay more attention to the crimes of communism than many of them have been inclined to do so far.

The Washington Post editorializes that the case for approving the Keystone XL pipeline was “always strong” and “has grown stronger.”

A key environmentalist argument against Keystone XL has been that the project would encourage the extraction of bitumen, a particularly dirty oil-like substance, from the “oil sands” in Alberta. If activists could “shut in” Canadian bitumen, limiting the ability of oil companies to sell the product, they argued, perhaps petroleum firms wouldn’t be able to fully develop the oil sands.

That hope always was unrealistic, and a recent announcement from Kinder Morgan, another pipeline company, illustrates why. The firm wants to nearly triple the capacity of its existing Trans Mountain pipeline between Alberta and Vancouver — a route from the oil sands to the world market — enabling it to carry even more product than the Keystone XL would. From there, much of it would probably head to Asia. Because the pipeline exists, expanding it may not face the same regulatory hurdles — particularly opposition from native groups — that other proposals to run new pipelines to Canada’s west coast have encountered.

There is already enough spare pipeline capacity running out of the oil sands to accommodate increasing production for much of this decade, a government report concluded in 2010. While Kinder Morgan’s expansion certainly wouldn’t sate all the future demand for pipeline capacity, it would add more time before the environmentalists’ strategy could seriously impact production. And it demonstrates a critical point: Even if environmentalists manage to stop one pipeline or another, given high world oil prices, the enthusiastic support of the Canadian government, the many transport options and the years available to develop infrastructure, it’s beyond quixotic to believe that enough of the affordable paths out will be blocked. Environmentalists might succeed, however, in relocating some construction jobs outside the United States.

The editorial also criticizes Republicans for trying to force the President’s hand. I think a better question is why this pipeline is subject to executive approval in the first place. The White House only has a say about Keystone XL because it crosses the U.S.-Canada border. Yet the stated reasons for not approving the pipeline — such as concerns about the potential environmental effect of a spill in Nebraska — have absolutely nothing to do with the pipeline’s transnational character and can be addressed through traditional regulatory controls and siting processes. Further, the legislation forcing an executive decision on the pipeline project expressly ensured state officials could alter the route to protect local environmental concerns. If there are no particular problems arising from the cross-border nature of this project, there’s no reason for the State Department to have any concerns — and it’s only the State Department’s review that is at issue. So before attacking the GOP for trying to force the President’s hand, the Post should ask how the President is able to hold up this project in the first place.

Orin quotes Leiter as follows, in suggesting that Elizabeth Warren would not have listed herself as a Native American to benefit from affirmative action: “For affirmative action purposes, all law schools care about are African-Americans and Latinos.” But he also quotes Leiter as follows: “[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties [editor's note: as does the ABA, which is of course in charge of accreditation], law schools are careful to make sure anyone who could count as an under-represented minority is so-listed.”

So if law schools are worried about not having “enough” underrepresented minority faculty to satisfy the AALS (and the ABA), and if Native Americans count as underrepresented minority faculty (they do), surely it gives a law professor a potential advantage to promote oneself as a Native American.

This is not to say that Warren’s hiring at Harvard had anything to do with her dubious claim of minority status. But that’s a red herring. The issue isn’t whether Harvard or anyone else would or would not have hired Warren otherwise. The issue is whether Warren claimed dubious minority status because she thought that on the margins it might benefit her. [The issue, in short, is Warren's integrity, not whether she "deserves" to be at Harvard based on her academic achievements. In fact, Warren has had an extremely impressive academic career, especially given that she started with the serious disadvantage of not in any way taking the traditional 'elite law school to elite clerkship to elite law firm' route that almost every professor at an elite law school has taken.]

Perhaps not. But all she has to do to clear things up is to answer the following question: “why did you list yourself as a minority professor when you were a professor at Texas and Penn, but then didn’t do so once you arrived at Harvard.” I can think of plausible explanations that would not reflect poorly on Warren, but she hasn’t as yet provided such an explanation. All she’s said is that she’s proud of her Native American heritage, which hardly explains why she listed herself at Penn and Texas and not at Harvard.

Note to Warren’s campaign: If you want to provide a written response to the query above, I’d be happy to post it on this blog.

UPDATE: Warren now claims that the answer the query raised above is that she hoped to meet and interact with other lawprofs who similarly had Native American ancestry. Professor Jacobson responds that this doesn’t make sense, because the AALS guide doesn’t tell one’s colleague which minority group one is claiming membership in. Read his post and decide for yourself.

Tags: Elizabeth Warren

I think the most interesting commentary so far on the Elizabeth-Warren-Native-American kerfuffle has been Brian Leiter’s. After Brian’s usual potshot at this blog, he makes a rather intriguing argument for why Warren probably didn’t rely on her apparent Native American heritage in getting hired. In legal academia, he writes,

there is no pressure to hire Native Americans for affirmative action reasons, except, perhaps, at some law schools in states with large Native American presences (I have this only anecdotally about Arizona and New Mexico). For affirmative action purposes, all law schools care about are African-Americans and Latinos, and even in those two categories, law school commitment to affirmative action usually varies by region of the country.

Brian discounts the listing of Warren as a minority professor in the AALS book as indicating more about the AALS’s priorities than Warren’s:

[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties, law schools are careful to make sure anyone who could count as an under-represented minority is so-listed (thus, I can recall a faculty member who was the proverbial “Jewish kid from New York” but with some South American ancestry being listed as “Hispanic,” though no one would have ever so identified him).

I don’t have an independent basis on which to assess either claim. Brian is very savvy about legal academia in general, however, so I’m inclined to credit his view. I should add that I share Brian’s skepticism that Warren relied on her ancestry to help get a job at Harvard. My sense is that Warren was indeed among the top bankruptcy scholars at the time Harvard was looking to hire her — and that she very likely was the top female bankruptcy scholar, a distinction that likely carries some significance to at least some faculty members. As Brian notes:

[Warren's] record of scholarship in bankruptcy is clearly sufficient to get her appointed at Harvard. She is, after all, one of the three most-cited scholars in the bankruptcy/commercial law field, and she is the only woman in the top ten. (I could imagine being the top woman in the field might have played more of a role than her being Native American . . .

Although I’m a strong advocate of property rights, I agree with most of what Georgetown political philosopher Jason Brennan says on the subject at the Bleeding Heart Libertarian blog:

The left believes that libertarians believe:

Property Rights No Matter What: People are self-owners. Respecting their self-ownership requires a particular kind of laissez-faire property-rights regime. We should have that regime no matter what, even if it immiserates the poor and systematically leads to widespread poverty.

In fact, hardly any self-described libertarians believe this. Instead, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property right in large part because they think this will tend to make people’s lives go better.

The left wants us to have a debate over whether “property rights no matter what” is true. They’ll win that debate.

What we’re trying to say in this blog is that if you look carefully at what the (smart) left means by “social justice”, almost all us classical liberals and self-described libertarians count as caring about social justice.

At least as a matter of moral theory, it’s a bad idea for libertarians to defend absolute property rights regardless of consequences. Doing so is both intellectually weak and unlikely to persuade anyone not already strongly sympathetic to libertarianism. The defender of absolute property rights will have to face painful hypotheticals such as the following:

What if redistributing a tiny fraction of George Soros or Rupert Murdoch’s fortune is the only way to save 1000 innocent people from starvation through no fault of their own? What if the only way to save the world from an asteroid strike is to violate the property rights of some misanthropic individual who doesn’t care if civilization is wiped out?

As I have pointed out previously, libertarian property rights absolutists are not the only ones who face such problems. The same issue arises with any theory of absolute rights:

Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

But the fact that advocates of other ideologies run into similar problems when advocating absolute rights is no reason for libertarians to replicate their mistakes.

Rejecting absolute rights as a matter of moral theory does not mean we should always reject them as a matter of policy. Political realities such as slippery slope problems, interest group power, and knowledge limitations might justify absolute prohibitions against some types of behavior even though there may be rare instances where it is actually justified. For example, while I recognize that there are rare cases where Kelo-style “economic development” takings cause more benefit than harm, I am skeptical that real-world governments subject to interest group lobbying are likely to confine their use to these unusual cases. For that reason, I favor an absolute ban on economic development condemnations in the real world, even though I would prefer a different policy if we had a completely benevolent government with perfect information. Similarly, one can favor an absolute ban on torture on the grounds that cases where it is the best way to prevent massive terrorist attacks are extremely rare, and real-world governments are unlikely to confine its use to those cases if given the opportunity to engage in it.

Rejection of absolutist rights theories also does not require us to be pure utilitarian consequentialists. While I would be willing to sacrifice free speech or property rights in order to stave off disaster, that doesn’t mean I have to sacrifice property rights for small increases in economic efficiency or free speech to protect oversensitive people from the psychic pain of exposure to opinions they find highly offensive – even in cases where potential offended listeners derive greater utility from censorship than the would-be speakers would from expressing their views.

Finally, while I agree with Jason’s major point, I’m only partially convinced by his characterizations of both libertarians and left-liberals. As he recognized earlier in his post, there are some “hard libertarians” who do support absolute property rights completely independent of consequences, or at least claim to do so. On the left, there are many who define “social justice” in terms of a broad ideal of economic equality that goes far beyond attention to utilitarian considerations, and concern for the plight of the innocent poor. Even if liberals and libertarians agreed on empirical issues, the differences between the two ideologies wouldn’t disappear completely. But they would surely decrease by a lot. Regardless, a libertarianism that eschews absolute rights theory is both sounder and more likely to win converts than one that is indifferent to consequentialist considerations.

John Rosenberg discusses some of the bigger-picture slippery logic of affirmative action on Minding the Campus asking why those who believe in racial preferences have rushed to vouch that she never benefited from them.

I didn’t hear about this when the decision was handed down in 2003, and when it was apparently enforced in 2009 and 2010, but I just noticed it and thought it would be a good addition to our Blasphemy category and our Freedom of Speech Restricted by Fear of Thugs category.

From Prof. Sherry Colb, about the 2003 decision; other press accounts echo this (if any of you can point me to an English text of the opinions, please do):

Earlier this month [April 2003], the Israeli Supreme Court, in a 5-4 decision, refused to permit women to pray out loud at the Western Wall (“the Wall”) in Jerusalem. Known in Hebrew as the “Kotel Ha’Maaravi,” the Wall is all that remains of the second Jewish Temple destroyed by the Romans almost 2000 years ago. It is one of the holiest sites in existence for Jews around the world.

The plaintiffs in the case called themselves the “Women of the Wall.” They asked the Israeli Court to recognize their right to pray out loud at the Kotel, after they had repeatedly encountered physical and verbal abuse from the Ultra-Orthodox each time they tried to do so on their own.

The women had hoped and expected the Court to agree that they, as a matter of equality, should be able to assemble and pray just like men have done for as long as the Wall has stood. Besides formalizing the legal equality of women, such a ruling could help fortify the resolve of police who must invariably come to the women’s aid and repel acts of aggression.

On April 6, the women’s hopes were dashed. The Israeli High Court concluded that because of the violence that plaintiffs’ religious practice provokes on the part of Ultra-Orthodox spectators, the Women of the Wall would have to conduct their services elsewhere [at another portion of the Wall]. In the estimation of the Court, female assembly and vocal prayer at the Wall could endanger public order and lead to rioting by Ultra-Orthodox Jews.

And in 2009 and 2010, two women were indeed arrested for praying at a portion of the Wall covered by the 2003 decision: “Nofrat Frenkel was pushed into a police van and detained for the ‘crime’ of reading from a Torah scroll and wearing a tallit, and Anat Hoffman, a founder of Women of the Wall, was arrested, interrogated and fingerprinted for a similar ‘crime.’”

As Opinio Juris’ Peggy McGuinness explains, a New York state trial court (confusingly called a “supreme court” in New York) today turned down former IMF chief Dominique Strauss Kahn’s claim of civil immunity in a suit by the (former) Sofitel Hotel maid for acts that first got DSK charged criminally with sexual assault – charges later dismissed, however:

On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts. DSK is not entitled to this official acts/functional immunity … since he was not carrying out official duties during his visit to the Sofitel.

The full opinion is here; see the Opinio Juris discussion as well on the further customary international law claim raised by DSK but also rejected by the court. (Added: And see this further note by Julian Ku at OJ noting that the court didn’t see a need to reach the customary law questions raised by DSK in the case.)

Mark Olson says that CFPB is raising additional concerns as it ramps up in practice:

Two disturbing bits of recent information give us a taste of how the CFPB plans to operate. Representatives from the CFPB have acknowledged that lawyers from the bureau’s enforcement division are accompanying CFPB compliance examiners on their routine examinations….

The second disturbing bit of information concerns the manner in which examination findings are shared with other agencies. Because of the confidential nature of bank examination reports, there is a precise protocol for how government agencies share information. This is to guard against information gathered for one purpose by one agency being used by another agency for a different purpose. For example, there are good and obvious reasons why the IRS does not share personal tax information with other agencies outside a court order. There is also a wide concern that the CFPB, which has a Congressional mandate limited to consumer compliance, might use information collected by the safety and soundness regulators (Office of the Comptroller, FDIC, and Federal Reserve) in its enforcement efforts. With such an initiative, the CFPB would be sending an early signal that it does not intend to be limited in its scope by either precedent or Congressional directive. Hopefully the safety and soundness regulators will recognize the implications of such a request and will resist.

There is good reason why the new CFPB should feel it has a mandate for aggressive supervisory action. But just as in the old west, where vigilance committees quickly became vigilantes, there will be a fine line between the CFPB managing its new powers to achieve greater compliance with consumer laws and regulations, and the potential of an army of CFPB lawyers administering frontier justice on providers of financial services.

One of the obvious questions prompted by the public recognition that Elizabeth Warren’s claimed Native American ancestry is what it takes for someone to avail themselves of the preferential treatment afforded to racial and cultural minorities in hiring–and in particular, can someone assert the identity if they are only 1/32 and have absolutely no cultural ties, such as tribal membership.  (I say “public recognition” because I first heard this a decade ago but I certainly didn’t realize that she was only 1/32 Native American with no cultural tie.)  Warren herself, when originally asked about it, simply said that it was part of her “family lore,” indicating how little care she had put into classifying herself accurately.

To put it another way, would Warren’s 1/32 blood from her great-great-great grandmother, with no other discernible cultural links count for most university preference plans?  Hans Bader, who has worked on a number of such cases, is skeptical (he also notes David’s previous post on this).

I should also hasten to add that although Harvard frequently touted her Native American ancestry (Warren says she never authorized Harvard to claim her as a minority hire although Harvard must’ve gotten the information from somewhere) that does not necessarily mean that was a determining factor in Harvard’s decision to hire her, even if it was a consideration for her stepping-stone law school positions.  By that time she was a well-established commercial law scholar, certainly to the point where it seems plausible would not need to claim Native American background in order to receive a preferential boost to be hired (although obviously I don’t share the general enthusiasm for her work).

Update: Hans has updated and corrected his post so I’ve deleted the block quote that has been superseded and for those who want to read the specifics you can click through the link.

Earlier this year, the state of Texas adopted a rule barring organizations that promote abortions or affiliate with groups that promote abortions from participating in the state’s Medicaid-funded Woman’s Health Program. This rule effectively barred Planned Parenthood clinics from the program. In response, cut off funding for the state’s program, and Texas sued.

At the same time, the state’s Planned Parenthood affiliates also filed suit, alleging the restriction is unconstitutional. Yesterday, a federal district court judge issued a preliminary injunction prohibiting Texas from excluding Planned Parenthood clinics from the state program. Then, late last night, the U.S. Court of Appeals granted an emergency stay, temporarily setting aside the injunction. (The order is here.)

UPDATE: Here’s a link to the original order granting the preliminary injunction.

So holds yesterday’s Herron v. Fannie Mae (D.D.C. Apr. 30, 2012), citing (among other cases) United States v. Beszborn (5th Cir. 1994):

When FHFA [the Federal Housing Finance Agency] steps in as conservator or receiver it immediately succeeds to all rights and powers of the stockholders, officers, and directors of the regulated entity placed into such conservatorship or receivership. In like manner, on September 6, 2008, FHFA placed Fannie Mae into conservatorship. As conservator, FHFA took over the assets and operations of Fannie Mae with all the powers of the shareholders, officers, and directors to conduct all of Fannie Mae’s business, in order to preserve and conserve the assets and property of Fannie Mae….

In such circumstances, the federal agency in its guise as a conservator or receiver of a private corporation is not a government actor. For example, in United States v. Beszborn, 21 F.3d 62, 67–68 (5th Cir.1994), the Fifth Circuit held that the Resolution Trust Corporation (“RTC”) as receiver of a failed bank was not a government actor. The RTC had sued the former officers and directors of the failed bank in a civil case and obtained a judgment including punitive damages. The government subsequently brought criminal charges against the officers and directors based on the same conduct. The officers and directors asserted Double Jeopardy as a defense. The Fifth Circuit found that the RTC as receiver stood in the shoes of the insolvent bank, i.e., that the RTC was a private entity and not the government for purposes of the Double Jeopardy clause. Similarly, Fannie Mae was not converted into a government entity when it was placed into conservatorship; instead, FHFA stepped into the shoes of Fannie Mae. FHFA as conservator for Fannie Mae is not a government actor.

[Footnote: Ms. Herron unsuccessfully attempts to distinguish Beszborn, asserting that the RTC in that case operated to benefit the creditors and stockholders and asserting that FHFA operates Fannie Mae to benefit the federal government. This reflects an incorrect understanding of the facts. Treasury's interest in Fannie Mae is as a shareholder of Senior Preferred Stock. FHFA operates Fannie Mae to benefit of creditors and shareholders, in the same way that RTC operated the failed financial institution in Beszborn.]

Ms. Herron avers that Fannie Mae is a federal actor for the purpose of her First Amendment claim because: (1) the conservatorship is of indefinite duration; (2) FHFA presently controls Fannie Mae; and (3) Treasury provides financial support to Fannie Mae in exchange for non-voting Senior Preferred Stock. Ms. Herron draws the wrong conclusion from these three uncontested facts. Fannie Mae would be a federal actor if the FHFA conservatorship retained for the government permanent authority to appoint a majority of the corporation’s directors. Lebron, 513 U.S. at 400. To the contrary, the appointment of FHFA as conservator did not establish permanent government authority to control Fannie Mae….

First, Ms. Herron insistes that there is no date certain when the conservatorship of Fannie Mae will end,FN11 and, therefore, she erroneously concludes that FHFA control over Fannie Mae must be permanent. In order to be a government actor under the Lebron framework, permanent government control is required. Lebron itself distinguishes permanent from temporary control. The Supreme Court contrasted Amtrak, which was a federal actor in the permanent control of the government, from “a private corporation whose stock comes into federal ownership,” which is in the temporary control of the government. Lebron, 513 U.S. at 398. Although the duration of the conservatorship is indefinite, FHFA’s control over Fannie Mae is temporary. Fannie Mae was not a federal actor at the relevant time.

Second, Ms. Herron asserts that FHFA’s complete control over Fannie Mae makes Fannie Mae a federal actor. Congress empowered FHFA to act as conservator of Fannie Mae for the purpose of reorganizing, rehabilitating, or winding up its affairs. Thus, the enabling statute expressly allows FHFA temporary but complete control over Fannie Mae, not permanent control. The complete control exercised by FHFA is authorized by statute; it is how conservatorship is accomplished. Because conservatorship is by nature temporary, the government has not acceded to permanent control over the entity and Fannie Mae remains a private corporation.

Finally, Ms. Herron also argues that Fannie Mae was transformed into a federal entity via (1) Treasury’s appointment of Fannie Mae as administrator of the Home Affordable Modification Program through the Financial Agency Agreement and (2) Treasury’s entry into the Stock Agreement with Fannie Mae. With regard to the Financial Agency Agreement, it states that Fannie Mae is distinct from the government and must maintain a fiduciary duty of loyalty to the federal government. The Financial Agency Agreement also expressly provides that contractors to Fannie Mae (such as Ms. Herron) do not become subcontractors of the government. These provisions make it clear that the Financial Agency Agreement did not transform Fannie Mae into a government entity.

As a result, Herron’s allegation that Fannie Mae violated the First Amendment by terminating Herron’s contract based on Herron’s speech cannot go forward: Because Fannie Mae, even while it’s run by the federal government, is treated as a private actor, it is not bound by the First Amendment.

I’m not sure this is right. The government is in some measure bound by the First Amendment (and other Bill of Rights provisions) even when it’s running entities that could be run privately, such as housing projects, universities, utilities, railroads, and so on; nor do I see a difference between temporary control by the government and permanent control. But that’s what the court held, and the Fifth Circuit case that it cited (Beszborn) did the same. (The Supreme Court in Lebron v. National Railroad Passenger Corp. (1995) left open the possibility that the temporary vs. permanent control distinction was constitutionally relevant, but it didn’t decide the question.)

So holds today’s Lewis v. Rapp (N.C. Ct. App. May 1, 2012). An excerpt:

In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabon who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon’s opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell’s “Media Strategist” without receiving compensation.

On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabon and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff’s attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff’s attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.

On 12 April 2010, defendant posted another blog entry on Facebook and Carolina Talk Network titled: “Apologies, Corrections, Explanations and Amplifications on my Blogs.” Defendant stated in pertinent part:

I have spent this past weekend in prayer, mediation [sic], and contemplation…. First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind…. It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.

Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).

The court concluded that there was no evidence that defendant’s April 9 statement was said with so-called “actual malice,” which is to say that defendant knew it was false or consciously entertained serious doubts about its truth; plaintiff’s case was therefore thrown out as to the statement. But the court concluded that there was sufficient evidence of such “actual malice” as to the April 12 statement:

Although defendant expressly stated that it was his opinion that plaintiff had violated the Code of Judicial Conduct, an individual “cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability[.]” Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. Defendant claimed in the 12 April publication that he had read the Code of Judicial Conduct from “top to bottom” and it was his “opinion” that “probable cause” existed for the “proper authorities” to take “action.” Defendant was aware at that point that plaintiff was a candidate for judicial office. Having read the Code of Judicial Conduct from “top to bottom,” he was also aware that as a candidate for office, plaintiff was permitted to campaign on behalf of another candidate pursuant to Canon 7B(2). Defendant had been told by plaintiff’s attorney that Chief Judge Martin had issued a memorandum in which he stated that a sitting judge seeking reelection was permitted to campaign for any other candidate. Whether plaintiff was, in fact, in violation of the Code of Judicial Conduct could be easily investigated and proven false. Defendant ignored the proof that plaintiff was not in violation of the Code of Judicial Conduct and chose to assert a provable false accusation against plaintiff.

Moreover, defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry so that his readers could “make up [their] own mind[s]”; however, he did not include Canon 7B(2), which exonerates plaintiff of any wrongdoing. Defendant did, however, include Canon 7B(1), which, if read in isolation, would indicate that a judge may not endorse a political candidate. The inclusion of Canon 7B(1), coupled with the exclusion of Canon 7B(2), can only be perceived as a deliberate attempt by defendant to substantiate the false accusation contained in the publication….

[Footnote:] We note that defendant did express an opinion when he stated: “It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.” This statement, unlike the accusation that plaintiff was in violation of the Code of Judicial Conduct, cannot be proven true or false. Defendant is entitled to his opinion that it is “wrong,” or even unethical, for an office holder to campaign for a candidate. An opinion that a judge has acted unethically is quite different from an accusation that a judge has committed an act that could potentially lead to official disciplinary action.

The opinion is Pfau v. Mortenson (D. Mont. Apr. 30, 2012). I’m swamped right now, but I thought I’d pass along the opinion — which I should note heavily focuses on questions of whether the fraud was pled with enough particularity, something that’s required in fraud cases under the Federal Rules of Civil Procedure — and an excerpt from this Time report:

As of yesterday, Three Cups of Tea author Greg Mortenson is — at least legally — in the clear. The writer and philanthropist’s best-selling memoir (and its follow-up, Stones into Schools) has been tainted for almost exactly a year by accusations of falsehood: Last April, a 60 Minutes report and an investigation by journalist Jon Krakauer both alleged that Mortenson had fabricated portions of his book, a tale of how he took on the mission of building schools in Central Asia, and that he had improperly used funds from his charity, the Central Asia Institute, to promote the book. In the ensuing months, several readers who felt bilked by having bought the book filed lawsuits, but an Illinois suit against the Institute and Mortenson was dropped in July, and now a federal judge in Montana has dismissed the remaining charges of fraud and racketeering.