The Volokh Conspiracy

Congratulations to Ted Cruz, who has won the runoff election for the GOP nomination to the U.S. Senate from Texas. In Texas, the GOP nominee is almost certainly the next U.S. Senator. This was a long campaign overcoming enormous odds; when we first blogged about his announcement to run for the open seat, the campaign looked like a huge long shot. So this is a pretty remarkable win. I’ve known Ted since college, and I expect him to be a major force in the Senate. So congratulations to him, and to everyone who worked on the campaign.

Today is Milton Friedman’s 100th birthday. Friedman was the greatest libertarian economist of the last century, and one of the greatest economists of all time, regardless of viewpoint. In my view, what separated Friedman from most other great economists, and also most other leading libertarian thinkers, was his ability to speak to both expert and popular audiences effectively. Few other great scholars – and no libertarian ones – combined these two skills as effectively as he did.

Friedman’s work is also remarkable for the way most of it remains relevant even decades after he initially wrote it. Capitalism and Freedom was first published in 1962. But very little of it seems dated today.

Friedman was not the libertarian thinker who had the most influence on me personally. But he probably had a greater impact on scholars, policy-makers, and interested laypeople than any other.

I commented on Friedman’s legacy in more detail in this post, which includes links to earlier posts about Friedman.

Economist Bryan Caplan has posted a thoughtful tribute here:

Today would have been Milton Friedman’s 100th birthday. I only met the man long enough for him to sign my copy of Capitalism and Freedom, but he’s been a tremendous influence on me.

All of my other adolescent intellectual heroes – Ayn Rand, Murray Rothbard, Ludwig von Mises – gradually came to seem less impressive in my eyes. But the greatness of Milton Friedman is as constant as the Northern Star. Whether he’s calling for the abolition of medical licensing in Capitalism and Freedom, or analyzing the co-movement of the money supply and money velocity in A Monetary History of the United States, Friedman takes controversial stances, and actually convinces people.

Why does Friedman stand apart from my other idols? In the end, it’s the absence of obscurantism. Friedman makes his points as simply, clearly, and bluntly as possible. He never rambles on. He never hides behind academic jargon. He almost never makes bizarre philosophical assertions to explain away obvious facts. He never tries to win fair weather converts by speaking in vague generalities about “liberty.” Friedman never turned out to have feet of clay, because he played every game barefoot.

Many libertarians look down on Friedman for his moderation and statist compromises. I’m about as radical as libertarians come, but these critics have never impressed me. By any normal standard, Friedman was a very radical libertarian indeed. If you’re going to take points off for a few deviations, remember to give him extra credit for earnestly trying to convince people who didn’t already agree with him. His arguments for liberty weren’t just intellectually compelling; he made them with humor and common decency.

UPDATE: David Henderson has some interesting thoughts here.

Here’s the head of Huawei’s enterprise business last year, telling the Financial Times that the whole security thing is overblown:

Mr Xu said Huawei represented no threat to national security anywhere.

“There has never been a single network security breach case that has ever happened with Huawei.”

Whoops.  Here’s a recent ComputerWorld report on the penetration testing of Huawei’s routers:

Security researchers disclosed critical vulnerabilities in routers from Chinese networking and telecommunications equipment manufacturer Huawei at the Defcon hackers conference on Sunday.

The vulnerabilities — a session hijack, a heap overflow and a stack overflow — were found in the firmware of Huawei AR18 and AR29 series routers and could be exploited to take control of the devices over the Internet, said Felix Lindner, the head of security firm Recurity Labs and one of the two researchers who found the flaws.

The researcher, who also analyzed the security of Cisco networking equipment in the past, described the security of the Huawei devices he analyzed as “the worst ever” and said that they’re bound to contain more vulnerabilities.

“This stuff is distrusting,” said security researcher Dan Kaminsky, who is best known for discovering a major vulnerability in the world’s DNS (Domain Name System) infrastructure in 2008 and who worked for Cisco in the past. “If I were to teach someone from scratch how to write binary exploits, these routers would be what I’d demonstrate on.”

“What FX [Lindner's moniker in security circles] has shown is that the 15 years of secure coding practices that we’ve learned about — the things to do or not do — have not been absorbed by the engineers at Huawei,” Kaminsky said.

The Recurity Labs researchers specified during the talk that they didn’t test any “big boxes” like the Huawei NE series routers — which are intended for telecom data communication networks — because they couldn’t obtain them.

Lindner and Kopf also criticized Huawei for its lack of transparency when it comes to security issues. The company doesn’t have a security contact for reporting vulnerabilities, doesn’t put out security advisories and doesn’t say what bugs have been fixed in its firmware updates, the researchers said.

Maybe Huawei, which is also suffering from an intelligence committee investigation it requested publicly, should follow former Defense Secretary Gates’s advice about talking to the press.  After the White House gave out a lot of questionable information in early press briefings about the bin Laden raid, Gates is reported in David Sanger’s new book to have suggested “a new press strategy” to the national security staff: “Shut the F*** Up.”

 UPDATE: Huawei has now responded to the DefCon report:

“We are aware of the media reports on security vulnerabilities in some small Huawei routers, and are verifying these claims. Huawei adopts rigorous security strategies and policies to protect the network security of our customers, and abides by industry standards and best practices in security risk and incident management. Huawei has established a robust response system to address product security gaps and vulnerabilities, working with our customers to immediately develop contingency plans for all identified security risks, and to resolve any incidents in the shortest possible time. In the interests of customer security, Huawei also calls on the industry to promptly report all product security risks to the solutions provider so that the vendor’s CERT team can work with the relevant parties to develop a solution and roll-out schedule,” the company said in a statement.

I’ve blogged a lot on the scope of the Computer Fraud and Abuse Act, and specifically on whether using a computer in violation of a computer use policy or Terms of Service is a federal crime. I’ve been banging the drum urging courts to adopt a narrow interpretations of the Act for a decade, and the question has recently reached several courts of appeals. A lot has been happening on this front recently, so I thought I would bring readers up to speed. To follow this issue, you need to watch all three branches. So let’s start with the pairing of Judiciary/Executive, and then cover the pairing of Legislature/Executive.

First, the Judicary/Executive. Last Thursday, the Fourth Circuit deepened the apparent circuit split by joining the Ninth Circuit in adopting a narrow interpretation of the CFAA in WEC Carolina Energy Solutions v. Miller. A day later, DOJ asked for another extension of the period in which a cert petition could be filed in United States v. Nosal, the Ninth Circuit en banc case. DOJ’s request for more time may have been at least in part a response to the Fourth Circuit’s decision the day before, although I haven’t seen the filing so I don’t actually know. It’s also possible that DOJ wasn’t planning on filing for cert in Nosal but might reconsider in light of WEC. It’s hard to know.

Next, the Legislature/Executive. The Senate Judiciary Committee is in the middle of its markup of The Cybersecurity Act of 2012, S3414, which you can read here. In its current version, it has no changes to the Computer Fraud and Abuse Act. However, Chairman Leahy has proposed an amendment to the Cybersecurity Act that would make two major changes. First, Leahy’s amendment would add a bunch of things DOJ wants, such as enhancing the CFAA’s penalties, adding an asset forfeiture provision, and creating a new extra-punitive 18 U.S.C. 1030A (see Sections 1-7 of the Amendment). Second, Leahy’s Amendment would add the statutory fix to the definition of “exceeds authorized access” that essentially adopts the narrow view of the circuit split on the scope of the CFAA (see Section 8 of the Amendment). This last Amendment is the Grassley/Franken/Lee Amendment that was supported by the Judiciary Committee back in September 2011. Meanwhile, DOJ is trying to get the best of both worlds: They support Sections 1-7, but they’re trying hard to block Section 8.

How this plays out is anyone’s guess. But it does prompt interesting questions of strategy for both sides. If you think the Supreme Court would adopt the narrow view of the CFAA — a view that has the momentum in the Court of Appeals — then the statutory fix doesn’t have much value either way. But if you’re not sure of that, and you want the narrow view of the CFAA, do you take the generally undesirable penalty enhancements to the CFAA to get Section 8 — assuming that is an option? Either way, if Congress enacts the statutory fix, then the issue is no longer certworthy and you’ll never know how the Supreme Court would have ruled. Stay tuned, as always.

I’m on a family trip, and will be blogging little if at all this week; but I had a chance to look at a New York Times op-ed titled “Is Algebra Necessary?” and thought it was worth passing along to see what our readers thought of it.

My own quick reaction to the op-ed is negative — though I’m not certain of this, I suspect that algebraic problem-solving teaches useful mental habits that both open up possible future careers and also help train people’s general problem-solving abilities — but I don’t have time to say more about it. So instead of substance, I thought I’d note this sentence:

(How many college graduates remember what Fermat’s dilemma was all about?)

I remember both Fermat’s last theorem and his little theorem, but not Fermat’s dilemma — and neither does Google Books, which reports one hit for “Fermat’s dilemma,” referring to a problem in a book on math teaching in which a hypothetical math teacher named Mr. Fermat faces a dilemma.

Am I missing some thing that really is called “Fermat’s dilemma”? Or is it an erroneous reference to the seemingly very obscure Fermat’s Lemma (7 Google Books hits)? Or is it perhaps some deep joke on the author’s part that I’m missing?

UPDATE: Thread-winner from Orin Kerr: “Fermat’s Dilemma is whether to admit that you don’t know the proof for a theorem or just to pretend you know the proof but you don’t have space in the margin to explain it.”

Harvey Silverglate, my favorite criminal defense lawyer and champion of civil liberties, has another broadside against the DOJ at Forbes.com:

When one steps back and takes in a broader view than Juszkiewicz allowed himself to see, it is apparent that the problem is not just a war against capitalism. When a businessman is harassed by overzealous prosecutors, he declaims a war on business just as when a newspaper is harassed, it declaims a war on journalism. It would be a boon to the nation as a whole if those under attack by federal prosecutors could better understand the scope of the problem: they are victims of a war against all of civil society, waged by a Department of Justice wielding incomprehensibly vague and broad criminal statutes enacted by a Congress that too often seems not to know what it’s doing. The supposed restrictions that federalism imposes upon the power of the national government become a farce in the face of such a tangle of laws and regulations, and we all stand to lose from such an outcome.

My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it:

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

I agree with Eric that Obamacare opponents have every right to continue attacking its constitutionality. The other branches of government and the general public have to obey Supreme Court decisions. But they don’t have to agree with them or refrain from urging their reversal. This goes double for a closely divided 5-4 decision resting on highly contestable reasoning that could well be reversed or narrowed by a future Court. Just as liberals continue to attack decisions they oppose, such as Citizens United, conservatives and libertarians should oppose Sibelius. I think Eric is also correct that the other branches of government can reject a policy as unconstitutional, even if the Supreme Court rules that it is permissible. This is particularly true in a case like this one, where Chief Justice Roberts explicitly rejected the “most natural” reading of the individual mandate law and adopted an extremely strained alternative for the purpose of saving it from invalidation.

Eric also has a good summary of some the reasons why the Chief Justice John Roberts’ opinion upholding the mandate as a tax was wrong:

To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.

Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.

As a matter of short term political strategy, it’s hard for me to say whether the GOP will be better off adopting Eric’s strategy, or instead accepting the Court’s ruling that the mandate can be considered a tax, and then attacking Obama for violating his promise not to increase taxes on the middle class. The latter strategy would be a reversal of the position most Republicans adopted during the Obamacare litigation. But the electorate often rewards opportunism more than consistency. Be that as it may, I certainly hope that opponents of the mandate adopt a long-term approach like that urged by Eric.

In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert….

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions.

As Will points out, this is just one particularly egregious example of the abuses caused by the vast growth of federal criminal law over the last several decades, to the point where the majority of Americans are probably federal criminals. I wrote about the broader problem here:

As [Judge Alex Kozinski and Misha Tseytlin put it, “most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted….”

The vast scope of federal criminal law is a very serious problem. Because of it, most Americans are effectively at the mercy of federal officials whenever they might choose to come after us. We are used to thinking of “criminals” as a small subset of the population… most of whom have committed genuinely heinous acts. But when we are all federal criminals, perfectly ordinary citizens can easily get swept up in the net simply by being unlucky or because they ran afoul of federal prosecutors or other influential officials. Overcriminalization also leads to the longterm imprisonment of hundreds of thousands of nonviolent people (mostly as a result of the War on Drugs, but many for other reasons as well) who haven’t caused any harm to the person or property of others. Some 55% of all federal prisoners are nonviolent drug offenders. In addition, the ability to convict almost anyone of a federal crime means that federal officials have wide discretion to punish people who are unpopular, politically weak, run afoul of the current administration, or otherwise become tempting targets…..

To me, the amazing thing is not that federal prosecutors sometimes abuse their enormous powers, but that they don’t do so far more often. However, as federal criminal law continues to expand, it will be more and more dangerous to keep relying on their self-restraint….

These dangers are not unique to federal law. State criminal law has been expanded too far as well. However, states that overcriminalize risk losing people who “vote with their feet” either because they fear imprisonment or because they don’t want to pay the high taxes needed to finance an overgrown criminal justice and law enforcement system. It is far more difficult to escape the feds…. Overbroad state criminal law is a menace. The fact that we are all federal criminals is even worse.

UPDATE: I have fixed the broken link to my 2009 post on the dangerous growth of federal criminal law. Thanks to Hans Bader for pointing it out.

The weeks-long conference at the United Nations to produce an Arms Trade Treaty is ending without the creation of a treaty. None of the draft treaties which have circulated in the past several days came remotely close to finding consensus support.

The impossibility of achieving consensus involved a wide variety of issues and nations, far beyond the Second Amendment concerns that have been raised by many American citizens.

The 2001 UN Programme of Action on Small Arms remains in effect. Over the last two decades, a large gun control infrastructure has grown up in the United Nations, not only in the headquarters building, but also within many of the UN various commissions and departments. Likewise, there are a significant number of NGOs which have a strong commitment to global gun control, and to using international law and the UN to solve what they consider to be the problem of excessive gun ownership in the United States. The NGOs and their UN allies have successfully used the 2001 PoA to sharply restrict gun ownership in some parts of the world, and they would have used the ATT  for the same purpose. That they did not succeed in creating an ATT may be very disappointing to them; they are not going to go away, or relent in the pursuit of their objectives.

But in their pursuit, they are not going to have the new weapon of an ATT. This is good news for human rights worldwide, especially for the fundamental human right of self-defense against violent criminals, and against violent criminal tyrannical governments.

Tonight’s opening ceremony for the 2012 Summer Olympics has been marred by the International Olympic Committee’s refusal to hold a brief moment of silence for the 40th anniversary of the murder of 11 Israeli athletes by Palestinian terrorists at the 1972 Olympics in Munich. IOC president Jacques Rogge claims that the reason is that “the Opening Ceremony is an atmosphere that is not fit to remember such a tragic incident.” But, as various commentators have pointed out, the IOC has held commemorations for other tragedies at previous opening ceremonies, including for Bosnian victims of the siege of Sarajevo (1996 [update: possibly it was actually in 1994]) and the victims of 9/11 (2002). If the Opening Ceremony is an appropriate venue for acknowledging tragedies that have no connection to the Olympics, it is even more clearly appropriate for honoring the victims of the worst act of terrorism in Olympic history.

It’s pretty obvious that the real reason for the IOC’s refusal has nothing to do with appropriateness and everything to do with fear of offending Arab nations, as Rogge privately admitted to the widow of one of the Munich victims. This is not the first time that the IOC has been inconsistent in its political statements. For example, beginning in the 1960s, it understandably banned apartheid South Africa from participating in the Olympics. But it did not ban numerous dictatorships with comparable or worse human rights records, including communist regimes guilty of mass murder such as the USSR, North Korea, and Ethiopia. One cannot distinguish between these cases because South Africa’s racial discrimination violated the rights of athletes directly. Communist and other dictatorships also oppressed athletes, as well as many other people. Saddam Hussein’s regime even tortured athletes who didn’t perform as well as expected. North Korea also punishes failed athletes, sometimes to the point of sending them to prison camps. Yet Iraq and North Korea were not banned from the games.

The IOC was willing to take action against a pariah state with few sympathizers, but not against more powerful states guilty of comparable and sometimes much worse offenses. Similarly, the Bosnia and and 9/11 commemorations occurred because few if any powerful states objected, while the Israeli Munich victims will get shortchanged because of the influence of the Arab regimes.

I don’t believe the IOC leadership actually approves of what happened in Munich in 1972. But they clearly do have some of the appeasement mentality associated with Munich back in 1938. They denounce the evil ways of pariahs (Al Qaeda, apartheid South Africa), but not comparable evils that have powerful supporters (communist dictatorships, Palestinian terrorism).

What should IOC do going forward? It should replace hypocrisy with consistency.

One option would be a consistent policy of refusing to make any political statements whatsoever, on the grounds that the IOC is a sports organization with no official political commitments. Thus, any nation can compete, no matter how bad its human rights record. And no commemorations for anything even remotely political. The IOC would maintain the same kind of absolute political neutrality that Olympia did in ancient Greece, when all Greek city states were allowed to participate in the games, sometimes in spite of committing various atrocities that were widely condemned by contemporaries. If it adopted this approach, the IOC could credibly claim that it is above politics, and prefers to leave political issues to other organizations better suited to addressing them.

Alternatively, the IOC could adopt a human rights standard that is consistently applied. Any nation will be banned from the Games if it, say, engages in mass murder or other massive human rights abuses. The offending state will be excluded no matter how influential it is. And it goes without saying that such massive human rights violators will be ineligible to host the games. There would be no repeat of Berlin 1936 and Moscow 1980. Under this approach, the IOC could also hold commemorations for all human rights abuses that are closely associated with the Games themselves in some way; and perhaps also for unrelated abuses that are sufficiently large-scale in nature. One can debate how high the human rights floor should be or how closely a tragedy has to be related to the games before it gets its own moment of silence. But whatever rules are established should be consistently applied.

Either consistent approach would be a big improvement over the hypocritical status quo.

UPDATE: I should add that a professional organization, as per my first option for the IOC, that maintains strict neutrality on political issues need not be immoral or relativistic. Such neutrality could be motivated by a belief that the organization can do the most good by sticking to its narrow field of expertise rather than opining on issues better addressed by other institutions. In some cases, addressing tangentially related moral and political issues could even detract from that mission. For example, I don’t want the American Association of Law Schools to take positions on gay marriage and other controversial political and legal issues – not because these issues aren’t important or don’t have right answers, but because opining on them would undermine the AALS’ primary purpose. But if the IOC is going to be neutral, it must maintain that neutrality consistently, not selectively.

UPDATE #2: Jeremy Stahl of Slate points out that the Olympic opening ceremony actually included not one but two moments of silence, including one for the victims of the two world wars and other international conflicts. This further undercuts Jacques Rogge’s ridiculous claim that the IOC could not hold a moment of silence for the Munich victims because the opening ceremony is not an appropriate venue to commemorate tragedies. As Stahl puts it, “[i]t’s now clear that Rogge wasn’t telling the whole truth. It’s not that the opening ceremony wasn’t fit to remember tragedies. It’s that the IOC wanted to pick and choose which tragedies to remember.”

Today the U.S. Court of Appeals for the Sixth Circuit decided United States v. Sharp, a dog-sniff case. Here’s the court’s summary:

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. Therefore, we AFFIRM.

This is crazy?

Here’s one argument I’ve heard with regard to Citizens United, most recently on this thread but also from others: Once upon a time, corporations were seen as having to announce a specific set of purposes in their charters — e.g., to make money by selling cheese — and couldn’t go outside those purposes. If only that rule were reinstated, that would be a constitutional way of avoiding Citizens United, because corporate speech supporting or opposing candidates is outside those purposes.

But I don’t think that will work (even setting aside the substantial practical economic problems that it will cause, given that the flexibility to enter into new lines of business is often vital to corporations, especially when they face international competition). There are basically two variants of this proposal:

1. One variant of the proposal would be for states to issue corporate charters that expressly forbid corporations from speaking about political candidates (or ballot measures or what have you). But I think that would run into the same Citizens United problem. A state has no obligation to grant a corporate charter; but I don’t think it can limit the charter to exclude political advocacy any more than it can tell newspapers, “if you want to use the corporate form, you can’t editorialize for or against candidates,” tell churches, “if you want to organize yourselves as corporations, you can’t proselytize,” tell medical establishments, “if you want to organize yourselves as corporations, you can’t perform abortions,” or tell businesses, “if you want to organize yourselves as corporations, you can’t manufacture or sell guns.”

2. Another variant would be to require that corporations list particular purposes, and then only spend investor money on things that seriously advance those purposes — likely by replacing the “business judgment” rule, which leaves corporations lots of latitude to decide how to spend money, and substituting a tighter rule. In that situation, it’s possible that corporations could then be limited in, say, contributing to a local charity (unless they can show that this really will produce goodwill) or backing an ideological cause when it’s really just the pet cause of the managers (again, unless they can show that this really will help the corporation).

But, oddly enough, any such rule would leave corporations entirely free to do what critics of Citizens United and First Nat’l Bank of Boston v. Bellotti most dislike: speak out in favor of or against candidates or ballot measures, when such speech advances the corporation’s bottom line. After all, if some regulation hurts the corporation’s bottom line, trying to get the regulation repealed (whether through a ballot measure, through lobbying, or through the election of a candidate who supports repeal) is entirely within the corporation’s purpose of benefiting its shareholders. Likewise, of course, for getting regulations enacted. So even a corporation that is rigidly required to serve its purpose of “making money for shareholders by making and selling cheese” would still be free to speak out in favor of pro-cheese candidates, or pro-tort-law-defendant candidates, or pro-employer candidates, or pro-low-tax candidates.

If there is something wrong with corporations spending money to back or oppose candidates or ballot measures, it is not that the corporations generally aren’t truly serving the interests of shareholders, or that they generally are going beyond their purpose of making money in this or that line of business. The objection to such spending is generally that it will be too good at helping the corporation make money: whether by corrupting the candidate, or simply by electing candidates who are already ideologically disposed to support the corporation’s preferences, the corporation will get more financial benefit than it ought to, at the expense of consumers, taxpayers, competitors, and so on.

Those corruption / equality / economic rent-seeking arguments are interesting arguments, which have been amply discussed elsewhere, and which I don’t want to get into here. But I don’t see any force to the argument that the political spending is somehow outside what should be the corporation’s legitimate purpose of making money in some particular line of business. Most of the time, the political spending is all about promoting the corporation’s making money in that very line of business, and requiring the corporation to state its limited purposes in its charter wouldn’t do anything to stop such spending.

Prof. J. Robert Brown, Jr. (The Race to the Bottom) writes about how often law faculty blogs have been cited by Westlaw-accessible courts and legal publications — the count as of June 2012 turns out to be 88 court citations and 6340 legal publication citations.

Sentencing Law & Policy is still the titan of the court citation category, with just a bit over half (45) of all citations; we are a distant second, at 8. I’m pleased to say, though, that we have the most law review citations (742).

In a recent district court case, United States v. Ortiz (E.D. Pa. July 20, 2012), the court rejected the government’s argument that the automobile exception permits placing a GPS device on a car with probable cause. According to the court, the automobile exception only applies to justify a search inside the car based on probable cause to believe there is evidence inside the car. That can’t apply to allow a warrantless installation of a GPS device, the court ruled. Placing a GPS device on the exterior car doesn’t intrude into the car and can’t collect evidence inside, so the automobile exception can’t apply.

Assume the Ortiz decision is right, and that placing a GPS device on a car requires a warrant. Here’s my question: How should judges draft the warrant to comply with the Fourth Amendment? The Fourth Amendment states that no warrants shall issue without probable cause, and it demands that that warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” How should a judge make sure these three requirements are satisfied? Let’s take each of the three issues in turn.

First, what is probable cause in this setting? In the case of a warrant for evidence, the relevant kind of probable cause is probable cause that evidnce exists inside the place to be searched that will be collected by the search. But if the installation of a GPS device does not obtain evidence in the car, then presumably this standard doesn’t apply. My question is, what replaces it? Is it probable cause to believe that the driver has engaged in a crime? Probable cause to believe that the location of the car will itself be evidence? Probable cause of something else?

Second, what is the “place” that is searched? Is it the exterior surface of the car? The car generally? The location of the car when the GPS is installed? The location of the car over the course of the time it is installed, wherever that may be?

Third, what is the “thing” to be seized by the warrant? The GPS device doesn’t enter the car to take anything, which according to Ortiz disables the automobile exception. So what exactly does the installation of the device “seize”? Is it information about the location of the car, whatever that may be? Something else? And finally, if you think that information about the location of the car is either the place to be searched or the thing to be seized, how do you describe that with particularity?

Thanks to Cybercrime Review for the link.