The Volokh Conspiracy

At Balkinization, Mark Tushnet makes an important point about the relative lack of liberal icons on the short list to replace Justice Stevens: It’s early in President Obama’s term.  Scalia and Bork were nominated well into President Reagan’s second term, and both were in position to be nominated because Reagan had put them both on the U.S. Court of Appeals for the D.C. Circuit years earlier.  Reagan’s first Supreme Court nominee was Sandra Day O’Connor.  This was an historic appointment, but no one would have picked Justice O’Connor as a “conservative rock star” then or now.  So, Tushnet advises Lithwick’s young charges, “Patience, patience — yor time will come.”

It’s also fair to note, as I have, that President Clinton was less strategic in his appellate judicial nominations than were Reagan, Bush, and Bush were.  He put relatively few intellectual heavyweights in the Scalia, Easterbrook, Winter, Posner, GInsburg, and Bork mold, on the bench.  As a consequence, there are relatively few judges he placed on the bench in position who could make an inspiring Supreme Court choice (though I think it obvious Diane Wood belongs on such a short list).  Further, as I’ve noted before, President Obama has also been incredibly slow in selecting judicial nominees, and the average age of his nominees to the appellate age has been significantly older than that of his predecessors’ nominees.  This is not due to Republican obstruction, a hostile political climate, or some sort of double standard, but the Administration’s decision to focus its energies elsewhere.  But one consequence of this is Lithwick’s charges may have to be more patient than they (or she) would like.

Michael Weintraub and Tyler Cohen wonder what are the best songs about technology.  Weintrabu focuses on songs “whose lyrics deal explicitly with technological innovations and their cultural effects,” and suggests Paul Simon’s “Boy in the Bubble.”  It’s a good choice.  Paul Simon is a great songwriter, and “Boy in Bubble” was a popular song.  Here’s how it begins:

It was a slow day
And the sun was beating
On the soldiers by the side of the road
There was a bright light
A shattering of shop windows
The bomb in the baby carriage
Was wired to the radio

These are the days of miracle and wonder
This is the long distance call
The way the camera follows us in slo-mo
The way we look to us all
The way we look to a distant constellation
That’s dying in a corner of the sky
These are the days of miracle and wonder
And don’t cry baby, don’t cry

Here are the full lyrics, the video, and a live performance.

“Boy in the Bubble” is one good song about technology, but is it the best?  What’s your favorite? And why?

I’m sure many VC readers have been looking at the papers today, trying to sort out facts versus allegations, in the SEC suit against Goldman Sachs for fraud involving CDOs.  The Wall Street Journal, New York Times, Washington Post, and Financial Times all have good stories, to take the papers from my front lawn.

One of those stories (they have all, ahem, melded together in my mind) remarked that if sustained in court, and quite possibly even if not, the fraud suit and the narrative it tells, has the possibility of significantly altering the perception of the financial crisis, or at least its relationship to complex derivatives.  Away from a (possible, anyway one I share) perception of banks that didn’t much care about the down-stream performance of their products because they would get paid up-stream anyway — a perception of a systemically driven indifference, but not necessarily fraudulent, toward knowing, deliberately constructed malfeasance, understanding pretty well that these CDOs were headed to the dust-bin of history.

Such a shift in perception might come about regardless of whether this narrative is established as factually correct or not.  Another version might be that most of Wall Street was complacent and badly incentivized, so as to not care about credit quality — whereas Goldman Sachs, being the Masters of the Universe and Smarter Than the Average Bear (Stearns –ed.), uniquely saw it coming  and, in this case at least, protected itself and even figured out how to profit, but alas through fraud.

One of the problems with trying to say much at this stage about the legal analysis is that it is so factually driven.  If the facts are as the SEC alleges, well, then, bad, bad Goldman!!  But  on these allegations, there’s not a lot of room for legal nuance, although I am happy to be corrected on that in the comments, not being a securities litigator.  So, here’s my question for the comments.  Assume that the facts are as alleged.  In that case, is there an important legal issue, or is it the application of straight securities fraud principles?  Is there an alternative, plausible reading of the facts?  And is there an alternative, plausible factual reading that creates an important legal question?

That’s with respect to the fraud case on its own.  Assume the facts as alleged by the SEC.  What would that argue as a matter of long term regulatory reform in financial markets and institutions and regulation?  Although, frankly, at this stage, I’m more interested in the comments in trying to see whether there’s an important legal issue in the case at hand, as a legal issue.  As the New York Times Room for Debate blog exchange seemed to show, at this stage the systemic lessons people seem to be drawing out of the suit against Goldman are pretty much whatever they thought before the suit against Goldman.

And like me, did you “learn” the meaning from the Vulcan mind-meld?  (Continuing a discussion with Michelle from comments to an earlier post.)  I have to say, I did “learn” the word by hearing its repeated use on Star Trek.  To meld, so far as I’ve ever been concerned, means ... whatever it is that Spock did with his mind.  Feel free, Oh Ye Prescriptivists, to correct me in the comments.

I wrote about the dispute on Wednesday. I commented at the time:

This is big news, and not just because it was mentioned on the Drudge Report. DOJ and some of the ISPs have been disagreeing about this issue quietly for years. What makes this case unusual is that the two sides have decided to litigate it in open court. Assuming the parties are litigating this for keeps, it should at least work its way up to the Tenth Circuit. Further, the decision might very well create a split or invalidate a federal statute in a way that prompts Supreme Court review. So stay tuned: This is an important case to watch.

Scratch that. Today DOJ pulled the plug on its motion to compel, ending the dispute rather than litigating it. Rats! This issue has been a major question mark for at least a dozen years, and it’s high time the courts provided a definitive answer to it. Anyway, I hope the ISPs will continue to challenge the issue and that we’ll get a definitive ruling eventually. (C’mon, DOJ, what are ya, chicken? ;-))

Like David, I was also struck by Dahlia Lithwick’s latest column — and not just for the paragraph David highlights.  Frankly, I initially thought it was some sort of parody piece, as it is so divorced from the history of judicial nomination fights — including fights about which she has written. How does one write an article suggesting that conservative and libertarian legal luminaries have an easier time getting confirmed without any mention of Robert Bork? How does one suggest there would be no reasonable prospect of a filibuster of a Republican president’s nominees without mentioning the filibusters that have actually happened, such as the filibuster of Miguel Estrada, or were attempted, as when 25 Senate Democrats (including then-Senator Obama) voted against cloture of Samuel Alito?  Let’s look more closely at Lithwick’s article, as it suggests a disturbing degree of epistemic closure among parts of the liberal legal elite.

The article starts off with Lithwick remarking that she has found liberal law students are almost “bordering on despair” because the apparent frontrunners to replace Justice Stevens are too moderate or mainstream, and there is so little serious discussion of nominating a true liberal lion to the Supreme Court.

the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration. Let me be clear that Garland, Kagan, and Diane Wood all have admirers and enthusiasts. But for a generation of law students that has grown up revering American Constitution Society stalwarts such as Dawn Johnsen, Eric Holder, Pamela Karlan, John Payton, Laurence Tribe, Goodwin Liu, David Cole, and my own partner in crime Walter Dellinger, among others, the absence of most of these names from even the long shortlist is demoralizing.

They understand that it’s a foregone conclusion that there will be no risky pick for the court. They just aren’t sure what makes their heroes so risky.

If this is true, then these students (and Lithwick) are in a bit of denial about their place on the political spectrum.  The Supreme Court is already slightly to the left of the American public on most major issues.  Prospective nominees who would be to the left of the Court’s most liberal justices are, in turn, on the left-most edges of American politics. However mainstream the views of such liberal academics may be within the academy, they are not mainstream in society at large.  Moreover, most recent pollling shows that as many if not more Americans think the Supreme Court is too liberal as think it is too conservative, and in recent years, insofar as judicial nominations have influenced elections, it has helped the right more than the left (though it may not have had much effect overall).  As the Sotomayor hearings illustrated, few Senators are willing to give a full-throated defense of a liberal constitutional vision, so why would a President push such a nominee on the Court?

Then there is David’s favorite paragraph:

. . .my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. Not likely, because they’re all perceived as smart, well-respected constitutional scholars and judges.

So can someone please explain to America’s progressive law students why most of the liberal speakers at their national conference are already confirmation war punch lines? Is there some kind of false equivalency between the two groups that makes ACS “outside the mainstream” while the Federalist Society not only represents the mainstream but renders anyone outside of it hysterical? Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?

Then-judge Thomas was excoriated by then-Senator Joe Biden for having said nice things about Richard Epstein — as Biden brandished a copy of Takings — how could Lithwick think Epstein would be a “legitimate” candidate for the Court?  Michael McConnell, who was among the most prominent constitutional law scholars of his generation and a well-regarded Supreme Court advocate — was still a controversial nominee to the U.S. Court of Appeals for the Tenth Circuit, and it took over 14 months for the Senate to confirm him.  And, as David observes, note who’s not on Lithiwick’s list — the conservative equivalents of her liberal heroes.  At the same time, she doesn’t note the numerous reliably liberal judges and former DOJ officials who would be viable candidates, such as Seth Waxman.

And what could drive Lithwick to suggest that a filibuster would not be raised were a President McCain to nominate Federalist Society luminaries?  She should remember the filibuster of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit — she wrote about it — as well as Senate Democrats refusal to confirm Federalist Society co-founder Peter Keisler to that same court.  And then there are the 25 Senate Democrats who tried to filibuster Samuel Alito’s confirmation.

Lithwick cites the confirmation of Justice Antonin Scalia as evidence that ideological conservatives can be confirmed to the Supreme Court, while lamenting that an equally ideological liberal, such as Harold Koh, could not be.  Did she really forget about Robert Bork?  He was voted down in the Senate for his ideological views — views that were no more outside the mainstream of American politics than those of Harold Koh. And before Bork there was Bernard Seigan, another prominent academic appointed by a Republican President but shot down by Senate Democrats.  Does Lithwick really forget all this?  Or was she not paying attention because her side was winning?

And then she gets to Goodwin Liu, about whom she writes:

Goodwin Liu faces a brutal confirmation fight tomorrow precisely because he’s been brave enough to speak openly about how he thinks about the Constitution. Strip away the hysteria and distortions, and that’s all he represents: a voice on one side of a centuries-long debate about how to interpret that document.

And perhaps also because he has minimal real legal experience, has called for overturning some significant precedents and — perhaps most importantly — aggressively attacked (and in some cases misrepresented) Roberts and Alito while calling on the Senate to impose an ideological litmus test on prospective Supreme Court nominees. On this point she cites the Tom Goldstein HuffPo piece I dissected here.  Needless to say, I don’t think it helps her case.

Lithwick concludes:

Young people on both sides of the dispute over the Constitution deserve to have their stars. It’s awfully hard to be inspired when your heroes are benched before the game even begins.

But the game hasn’t just begun.  It’s been played for some time — and liberals are now learning what its like to play on the field they created. After years of targeting, attacking and smearing highly qualified conservative nominees, the tables have been turned — and it’s no fun.

[I in advertantly omitted the title when I first posted.  My apologies.]

A letter from Contemporary Family Services, Inc., one of the entities that has a contract with the state of Maryland to issue licenses to foster parents:

Dear Mr. Moore and Ms. Crudup,

Thank you for your interest in becoming licensed treatment foster parents with Contemporary Family Services, Inc. Unfortunately, at this time, we are unable to approve your home for licensure.

We are denying your application because of concerns raised by statements made during the home study interview, specifically your explicit request to prohibit pork products within your home environment. Although we respect your personal/religious views and practices, this agency must above all ensure that the religious, cultural and personal rights of each foster child placed in our case are upheld. Your statement indicates that there could potentially be a discrepancy between your expectations and the needs and personal views of a child placed in your care.

Should you wish to appeal this denial decision, you must submit a written request for an appeal, which must be received within 45 days of this notice, to:

[Name and address omitted –EV]

Sincerely,

[Name omitted –EV]

There’s a Baltimore Sun article on the subject, and the ACLU of Maryland has filed a complaint with the Baltimore City Community Relations Commission, arguing that CFS’s actions illegally discriminate based on the couple’s religion. (Crudup and Moore are Muslim.) 

I have read CFS’s denial letter, the substance of which I quote above in its entirety, and CFS’s Initial Home Study report, and the ACLU’s complaint seems to me to accurately summarize those documents. The ACLU lawyer, whom I asked for the letter, the report, and some background information, also gave me this answer to my question about CFS’s precise role:

CFS doesn’t have a formal relationship with the city of Baltimore but is licensed by the state of Maryland. The Maryland Office of Licensing and Management (which is a part of the Department of Human Resources) is authorized under the Maryland Code to license certain private agencies such as CFS to issue licenses on its behalf to foster parents. CFS is only one of many such private agencies who have been licensed by the state to issue licenses to foster parents on the state’s behalf. In addition, the state meanwhile also provides foster care licenses to parents (thus In some ways, acting in competition with the private agencies it licenses to issue licenses). Many of these private agencies including CFS work with children who need “therapeutic services” — that it, they need special services because they have been the victims of emotional or physical abuse. Ms. Crudup can go to a different agency, but was initially hesitant to do so because it would require her to re-complete the 50 hours of required training she had completed with CFS. It is not clear whether her training can be transferred to another agency.

The CFS decision described in the letter strikes me as quite unjustifiable. True, some parents’ religious practices might indeed make them unsuitable as foster parents, especially given that the foster care system probably can’t carefully tailor each placement to the child’s and parents’ preferences. But an insistence that the child not bring pork into the home — the only item that the letter mentioned — strikes me as a modest imposition on the child, one that doesn’t require the child (for instance) to actually say prayers or engage in rituals that belong to a religion that he doesn’t share, or require the child to forego things that are genuinely deeply valuable to the child’s happiness. Such house rules appear to me to be well within the discretion that foster parents should normally be allowed to run their home as they like, even while they share their home with a foster child that’s placed with them by the government. That CFS is balking at this particular rule thus seems likely to me to stem from hostility to the religious nature of the parents’ beliefs, and not from a sense that a child’s “religious, cultural and personal rights” indeed include the right to have pork in his home when his foster parents insist otherwise.

I should also note that if CFS had officially announced its policies up front, and left the parents free to go through other services — of which there seem to be many — I wouldn’t have as much concern, even though CFS is a government contractor that certifies people for government-required licenses. The ACLU might well disagree, but I think that here having a diversity of options is more valuable than insisting that all the options be nondiscriminatory; if, for instance, some service only wants to certify lesbian couples, another only married couples, and another only Christian families, I think that’s fine. But here it looks like the couple invested a good deal of time in reliance on the service’s applying reasonable criteria, and are now right to claim that they have been rejected on an unreasonable (here, likely religiously discriminatory) basis.

The Baltimore Sun reports, incidentally, that “Officials from the state Department of Human Resources, which oversees Maryland’s foster care system and hired the private company to manage the licensing process, notified Contemporary Family Services on Wednesday that it appeared to have violated several state laws. ‘The law does not permit the agency to make a determination solely on the type of food served in a home,’ said Nancy Lineman, a spokeswoman for DHR. ‘If this was us, we would not disqualify someone from being a foster parent based on these circumstances.’”

Thanks to Religion Clause for the pointer.

Dahlia Lithwick often seems to live in a different world than I, and, I think, other mortals. Take this line from a recent Slate piece:

This has political implications, certainly, but my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House.

Don’t get me wrong, I love Richard Epstein, and few things would please me more than to see him on the Supreme Court. But the idea that he would be seen as a legitimate candidate for the Supreme Court by a Republican president? Even though he has argued that all laws barring discrimination in the private sector should be repealed? Completely insane.

Then she adds: “Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them.” Okay, leaving out moderators and non-lawyers, at a minimum the following candidates would have been threatened with a filibuster and in most cases filibustered if it came down to it (assuming even the Republican Senators supported them): Epstein, Dan Troy, Miguel Estrada, Peter Kirsanow, John Eastman, Rick Hills, Ilya Somin, Randy Barnett, Todd Zywicki, Stephen Bainbridge, Frank Easterbrook, and Geoffrey Miller. There may be more, but I’m not familiar with all of the speakers and their records, and few of the remaining speakers strike me as conservative law students’ heroes. If you look at the most recent student convention, I’d say that just about every Federalist Society fellow traveler speaker would be filibustered if a Republican deigned to nominate one of them.

H/T Jacob Levy via Facebook

Conservatives are frequently accused, with various levels of justice, of whitewashing the history of conservatism in the U.S. to ignore, evade, or cover up inconvenient historical truths. 

Well, whatever sins conservative scholars have committed have now been matched by the Center for American Progress, which has published a monograph on the Progressive tradition in American politics.

The monograph begins with a laundry list of the Progressives’ legislation accomplishment. But among the Progressive reforms nowhere mentioned in this monograph are: alcohol prohibition; coercive eugenics (upheld in an appallingly insensitive opinion by Progressive hero O.W. Holmes); residential segregation by race (invalidated by the “conservative” Supreme Court); bans on private schools (invalidated by the “conservative” Supreme Court); judicial recall elections; and restrictions on women’s participation in the labor market (invalidated in part by the “conservative” Supreme Court, and then reaffirmed by a “Progressive” Supreme Court).

The monograph does mention immigration restrictions, but places the blame on “conservative” nativism, without noting the Progressives’ (including Theodore Roosevelt’s) longstanding creepy obsession with American “race suicide” because of immigration to the U.S. by the “lower races,” and without noting organized labor’s strong support for such restrictions.

To the authors’ credit, they do note that Progress Woodrow Wilson endorsed segregation in federal workplaces. However, they treat this as an unfortunate deviation from Progressive principle, when in fact early twentieth century Progressives’ views on race equality, with a few prominent exceptions, ranged from indifference to hostility. For example, every “Progressive” legal commentator who ventured an opinion decried the Supreme Court’s invalidation of residential segregation in Buchanan v. Warley.

In the end, what Progressives had in common was a commitment to activist government to promote their vision of the common good, and a concomitant impatience with or even contempt for competing claims of individual right. The best aspect of modern liberalism is that while it retained the Progressives’ enthusiasm for government regulation of the economic marketplace, it replaced Progressive statism in other spheres with respect for civil rights and civil liberties. It’s a shame to see the Progressives celebrated as modern liberalism’s forebears.

UPDATE: The problem, in other words, is the attempt to assert a seamless “Progressive” tradition from the original early twentieth century Progressives to modern liberalism/progressivism. The Original Progressives were not all recognizably on the political left, and had many political positions that people across the political spectrum would find appalling today. If the C.A.P.‘s thesis was simply that modern “progressives” had adopted the best aspects of old-style Progressivism, while ditching the worst, I wouldn’t have any objection. But the suggestion that modern “progressives” are firmly in a generally unchanged “progressive” tradition, without noting the original Progressives’ views on state-sponsored segregation, coercive eugenics, and so forth, is a distortion of history.

Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials.  They call for an approach that mingles aspects of criminal law and armed conflict law.  They emphasize the need for a legislated system.   (It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this — but regardless of where you start, I think this is an excellent discussion.)  A bit from the opening:

Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional “laws of war.” While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government’s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government’s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model – like the crime model – was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is “at war” and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.

My co-blogger Randy asks for my explanation of part of a blog comment I left over at Prawfs on his use of “unprecedented.” To fill in readers, I was responding to a post that began:

Randy Barnett is not just a great scholar; he’s also a great lawyer. Maybe someone else beat him to it, but I credit him with the now-popular claim that health care reform’s “mandate” to buy insurance is “unprecedented” in american history, that never before has the government forced anyone to enter into a contract with another party for insurance. Fantastic rhetorical move. Not really accurate, though. People who refuse to buy insurance have been paying a penalty for almost seventy years now. 

My response in the thread suggested that the post misunderstood Randy’s claim, and then added (perhaps inartfully!) the caveat that I had difficulties with the suggestion in Randy’s usage that I think makes it such a powerful rhetorical move — the suggestion being, it seems to me, that if a law is “unprecedented,” then legal “precedents” do not answer whether it is constitutional. 

To elaborate, my sense of the rhetorical power of the use of the term “unprecedented” in this debate owes in part to its mixing up two meanings of the term “precedent.” One meaning is the popular use of the term “unprecedented,” which generally means whether that same thing, however precisely defined, has happened before. (“The Houston Astros winning the World Series? That would be unprecedented!”) The other is the technical legal usage of of the term “precedent,” the extent to which the reasoning of prior related judicial decisions direct or suggest an answer within the framework of existing caselaw. My point was just that these two meanings are conceptually different, and shouldn’t be blurred. Whether a new law is “unprecedented” is a distinct question from whether “precedents” address the constitutionality of that law.

Of course, it’s entirely possible that Randy did not mean to equate these things, in which case I will apologize to Randy and thank him for the clarification of his view. But that’s what I had in mind with my comment over at PrawfsBlawg.

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that the text of the Constitution has a meaning that is independent of the opinions of the Supreme Court–a meaning that must remain the same until properly changed–as well as my exchanges with Orin on this blog, readers may be forgiven if they think my constitutional objections to the individual health insurance mandate are based on the original meaning of the Constitution–or what Orin calls the Constitution as it “ought to be.” But I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate. Under the original meaning of the Constitution, for example, Congress would have no power to regulate the health insurance business since insurance contracts–like the practice of medicine–are not “commerce,” which is why both activities have traditionally been regulated by the states. But I have not made anything like this objection; and neither have the Attorneys General in their lawsuit.

Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality. And, in response to confident predictions that the Supreme Court will uphold the mandate, I have suggested that they may be less inclined to do so if the bill continues to be unpopular, one or both houses of Congress flip parties, a serious repeal effort is blocked by a presidential veto or filibuster in the Senate, and the “benefits” promised by the bill have yet to be implemented. Everyone should know I think this last type of analysis should have nothing to do with whether a measure is or is not “constitutional,” but I do not deny these factors are relevant to whether the Supreme Court will uphold or invalidate an act of Congress. My point is that those who confidently predict that the Supreme Court will uphold this bill are not taking these sorts of factors adequately into account.

Part of my constitutional assessment (in the second sense) involves the unprecedented nature of this claim of power by Congress. (The other part is analysis of what the Supreme Court has said about the Commerce power since the New Deal.) Having made this observation back in December in my co-authored paper for the Heritage Foundation, my confidence in its accuracy has been increased by two developments. The first is the change of subject to the Tax power of Congress. Think about it. If the claim that this legislation was as clearly authorized by post-New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim.

The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company. True the early Militia Act mandated militia members provide their own private arms, but this was not an exercise of the Commerce Power. And we have been treated to the discovery of an early statute taxing sailors and spending the money on hospitals for their care. Of course, this is very much akin to how Medicare works (which is clearly “constitutional” in the second and third senses), and the regulation of navigation is squarely within the original meaning of the Commerce Clause (as I have shown in Restoring the Lost Constitution: The Presumption of Liberty), so this provision seems “constitutional” in the first sense as well. 

The only examples currently bandied by law professors concern tax credits for certain activities–like buying a home–within the income tax code. How to distinguish between a mandate coupled with a fine or penalty and a general income tax that allows for credits for certain activity is an interesting conceptual question. But our intuitions run strongly against this equivalence. Indeed, the President publicly denied this was a tax–which would break his no taxes on persons making less than $200K promise–and the bill itself refers to the provision as a “requirement” backed by a “penalty.” No, I am not claiming that the Court is bound by how the bill is worded, but this wording–and the President’s defense of the mandate–reflects an underlying reality, as well as a deep intuition that a monetary fine for violating a mandate is not the same as the failure to receive a tax credit. Indeed, the express rationale for the measure in the bill itself rests on the Commerce not the Tax power:

The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. (Page 125 of Senate bill)

Indeed the bill provides for refundable “tax credits” for qualified insurance plans in different section than the “individual responsibility” section containing the mandate. 

Consider this: If Congress had ever done anything like this before, we would all be able to think of countless things we are mandated to do by the federal government upon pain of a monetary penalty enforced by the IRS. Yet, apart from registering for the draft, I cannot think of much of anything the federal government mandates of people simply because they are alive, much less mandate pursuant to its Commerce Clause power. Of course there are a host of federal regulations that tell you how you must engage in particular economic activities should you choose to do so. Laws against discriminating with respect to employment or public accommodations come immediately to mind, but there are lots of others as well. 

But regulating HOW one engages in economic activity (or prohibiting an activity) and mandating THAT one engage in economic activity are not the same thing. It is the latter that is unprecedented. To uphold such a claim of power, the Supreme Court would have to go beyond its existing precedents–and well beyond them. Of course, the smart money says the justices will do just that–but this is a reference to the third sense of constitutionality described above: counting to 5 votes. 

In light of all this, I am genuinely intrigued by this comment Orin posted on Prawfsblawg (in which he is partially defending me from a criticism there):

I should add that I don’t buy Randy’s argument: He is trying to take one issue (factually, whether the federal government has done this precise thing before) and treat it as if it answered a quite different issue (legally, the doctrine of stare decisis).

This comment raises two questions of great interest to me. 

First, what are the Commerce Clause precedents that Orin thinks cover the personal health insurance mandate and why? I think I am pretty familiar with the post-New Deal Commerce Clause cases on which my own analysis relies, so I would be very interested to learn which of these cases cover this type of mandate. Second, what theory of stare decisis is Orin employing here? Of course all law profs know that any two situations can be “factually” distinguished if only by the time and place. So a simple difference in facts does not necessarily take a case out of a “precedent.” But I do not believe we are talking about this type of factual difference. We are talking about the difference between telling people engaged in economic behavior HOW they must act, and telling people who are doing nothing at all THAT they must engage in economic behavior. This “factual” difference seems to be really germane–as germane as the traditional and intuitive (though sometimes problematic) act-omission distinction in private law.

So, putting the Tax power issue to one side, I am very curious to know on what basis Orin thinks this personal mandate is governed by Supreme Court Commerce Clause precedent. I ask this in all sincerity, as I would greatly benefit from Orin’s considered explanation of how he thinks the doctrine of stare decisis applies here and decides this issue. Of course, Orin is under no obligation to post any reply to this query. However, since he seems to have a view on this, I am most curious as to what it may be. 

One final thought. If, for some reason, we are not suppose to carefully consider what exactly the Supreme Court HAS said about the Commerce Clause power in its decisions–along with what it has NOT said in those decisions–and we are also not supposed to take seriously the independent meaning of the text of the Constitution itself, then ALL “constitutionality” means is a prediction of what the justices will do (sense three). And this would seem to be the epitome of the Rule of Men, as opposed to the Rule of Law. It is certainly nothing that any nominee to the Supreme Court could claim and still be confirmed.

UPDATE: Thanks to Orin for his clarification. I take it from his response that he is not claiming that the personal insurance mandate is authorized by previous Supreme Court Commerce Clause cases. No apology is needed. I have been using “unprecedented” in both senses. But the fact this sort of thing has never been done before does figure into there being no judicial precedent for it — provided that it differs from what has been done before in a legally relevant way. That regulating HOW one engages in economic activity differs from mandating THAT you engage in economic activity is relevantly different is intuitively obvious, and I believe will be obvious to at least some judges. It takes a pretty counter-intuitive comparison with tax credits against a general tax — or a highly counter-intuitive denial of the act-omission distinction — to equate a mandate with a regulation or prohibition. While these counterintuitive moves can be understood by law professors and intellectual types, I think they are not an easy sell for a variety of reasons — including the fact that they would so greatly expand federal power beyond where it has ever been extended before. When this practical implication is combined with what the Supreme Court actually said in NLRB, Lopez, Morrison & Raich, I think the argument that a personal mandate is unconstitutional (in the second sense) is highly plausible, and the breezy assertion by some professors and pundits that the mandate is constitutional under existing doctrine is not supported by a close reading of these opinions–or so I claimed in my Heritage paper last December. If, that is, the Supreme Court follows its reasoning in previous cases when this issue comes before it, which returns us to issue 3.

Tags: precedent, stare decisis

turns out to be a constitutionally required qualification for only one kind of office in the U.S.: Maryland judges (who must be “most distinguished for integrity, wisdom and sound legal knowledge”). The Kentucky Constitution of 1792 also provided that Kentucky senators should be “men of the most wisdom, experience, and virtue,” but the current constitution doesn’t. [UPDATE: I originally erroneously attributed this to the current constitution.] The Georgia pledge of allegiance requires people to “pledge allegiance to the Georgia flag and to the principles for which it stands: Wisdom, Justice, and Moderation,” but that’s merely a statutory requirement.

Former Clinton speechwriter Eric Liu has an op-ed in the Politico today defending the nomination of Professor Goodwin Liu (no relation).  Eric Liu is correct that some attacks on Professor Liu have been overwrought or exaggerated — and, in my view, reflect a degree of ideological scrutiny I do no believe the Senate should engage in — but his defense is problematic as well.

Eric Liu wonders “why are these right-wing activists attacking his nomination? Maybe because Liu is a young progressive with a chance to serve on the federal bench for decades.”  Perhaps.  But perhaps also because Professor Liu’s stated views are less “moderate” outside of legal acdemia than Eric Liu acknowledges and because of Professor Liu’s own role in prior nomination fights — a point Eric Liu misses completely.

First, Eric Liu downplays some of Professor Liu’s  positions.  For instance, he writes that “Liu’s writings consistently argue that quotas are unconstitutional,” but fails to note that Professor Liu has called for Adarand to be “swept into the dustbin of history.” As Adarand held that strict scrutiny must be applied to federal affirmative action programs — and strict scrutiny is what has led to the invalidation of quotas and set-aside programs — this is a signficant omission.  I do not think this opinion should disqualify Professor Liu from the bench — I believe a liberal President is entitled to nominate liberal judges — but his defenders should be more forthright in defending his views, particularly if they wish to characterize him as “moderate.”

Second, as I’ve blogged before, the fervent opposition to Liu should be no surprise given Profesor Liu’s own role in opposing President Bush’s judicial nominations and urging the Senate to consider the ideological views of prospective nominees.  Not only did he deliver quite strongly worded testimony to the Senate Judiciary Committee opposing confirmation of Samuel Alito, he also wrote an op-ed grossly misrepresenting John Roberts’ record on the U.S. Court of Appeals for the D.C. Circuit.  [See this dissection of Professor Liu’s attack on Roberts here, with particular attention to point 2.]

Third, Eric Liu makes no discussion of the flap over Professor Liu’s questionanaire and the speed with which Senator Leahy has sought to push this nomination through.  Professor Liu’s confirmation hearing was first scheduled for a mere 28 days after his nomination.  This was pushed back due to partisan bickering over health care, and then it was revealed that Professor Liu’s Judiciary Committee questionnaire was incomplete, prompting senate Republicans to ask for yet more time to review his record and the 100-plus pages of late-submitted materials.

By comparison, when President Bush nominated a prominent legal academic to the federal appellate bench — Professor Michael McConnell — the Senate took over fourteen months to confirm him.  Liu, on the other hand, is sailing along, despite failing to provide the Senate Judiciary Committee with a complete questionaire response until late in the process.  And while Professor Liu is a prominent, rising academic, he’s no Michael McConnell (at least not yet).  At the time of his nomination, Professor McConnell was widely acknwoledged to be among the foremost constitutional law scholars of his generation, as well as among the top tier of Supreme Court advocates (now that he’s no longer on the bench, I believe he’s arguing a case before the Court next week).  Professor Liu, by contrast, is still up-and-coming, and has no meaningful litigation experience, let alone before the Supreme Court.  Again, it took the Senate over fourteen months to confirm McConnell.  [I should also note that, from what I understand, Professor McConnell never even attempted to provide the committee with full accounts of every public speech or lecture he had ever given, the Committee understood this, and it was never an issue.]

Let me reiterate, in case there is any confusion, that I believe the Senate should be relatively deferential to a President’s judicial picks, and that I believe Professor Liu is qualified for the bench.  A liberal President should get to see liberal nominees confirmed, just as a conservative President should get to see conservative nominees confirmed.  Yet that has not been the Senate’s approach of late, as several of President Bush’s nominees were blocked.  If this is going to change, Senate Democrats and Professor Liu’s defenders need to acknowledge thir role in judicial wars past and call for a friendlier confirmation process for all judicial nominees.

The land in DC occupied today by American University and the Spring Valley neighborhood was once used by the US Army in WWI as a testing ground for chemical agents, including mustard gas and various other things.  I live in Spring Valley and work at American University, so I have long followed the saga that began when a couple of the embassy residences doing construction a decade or so ago dug up some ancient chemical weapons bombs and bomb casings.

The story has it that the Army used to tether some goats on what was then pasture land and shoot mustard gas shells at them to see what would happen.  Some of the stuff left over got buried on site, and has been gradually discovered over the years.  This has included the rather lovely university president’s house.  (I’ve always followed chemical weapons issues fairly closely; I once had charge of a human rights forensic pathology team in Iraq after the first Gulf War investigating Saddam’s chemical weapons use against Kurdish villages.)

The contamination issues have been two.  One is the discovery of actual chemical weapons, containers of mustard gas, ancient shells, etc.  The discovery and removal issues have involved massive tenting over a couple of yards of now unoccupied houses, and big signs that say (I’ve always thought it would make a good name for a band) “Shelter in Place!”  And a twenty-four hour guard in a special guard house.

The other other issue, however, is not actual chemical weapons, but arsenic degradation products.  I am told by several eminent chemists, several of whom live in the neighborhood, that the topsoil removal program is quite excessive to the risk involved from arsenic — you’d have to eat a cup of so a day of the contaminated soil for years, although I can’t corroborate this and certainly haven’t tried it — and really represents the Army Corps of Engineers giving way to the Contingent Protection of Property Values of Anxious Spring Valley Homeowners.

Be that second issue as it may — I’m not a chemist — the discovery of new aging chemical weapons continues occasionally to happen.  A canister of mustard gas was discovered yesterday buried in the yard next to the university president’s residence.

The U.S. Army Corps of Engineers has uncovered what could be a fourth major disposal area for World War I-era munitions and chemical weapons in the nation’s capital.

Digging was suspended April 8 as a precaution at the site in the pricey Spring Valley neighborhood near American University after workers pulled smoking glassware from the pit, project manager Dan Noble said Thursday.

Preliminary tests show the glassware was contaminated with the toxic chemical arsenic trichloride. Officials will review safety procedures before digging continues.

Workers also discovered a jar about three-quarters full of a dark liquid that turned out to be the chemical agent mustard. It was used during World War I as a weapon that caused blisters, breathing problems and vomiting.

This being about three blocks from my house, I am prepared, if need be, to Shelter in Place.

Former DOS Legal Adviser  John Bellinger has a short opinion column out at the Council on Foreign Relations site (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism.  John takes up a range of issues, from trials to repatriation and more, and concludes that there is mostly continuity with the second Bush term.  I agree.  I’ve suggested that the legal rationales underlying targeted killing and drone warfare have somewhat shifted, at least so far as outsiders unprivy to inside legal documents can tell, through a re-affirmation of international law of self-defense, and following the Adam Serwer post I mentioned earlier, I would add with respect to the issue of targeting an American citizen who has taken up an operational role, as well.  But overall, and in the detention questions particularly, I quite agree with John’s assessment.  The column is a good, short, robust statement of the issues.

That’s the title of a draft article that I have recently submitted to law reviews. Most of the article is a translation into English of the Mexican federal gun control statute. The article also translates current and past versions of the Mexican Constitution’s right to arms clause, and provides some basic information about the operation of Mexican firearms laws, some brief history about gun culture in Mexico, and analysis of claims about the percentage of Mexican crime guns which come from the U.S. civilian market. Thanks to Denver University law student Angelica Tovar-Hastings for helping with the translation.

USA Today recently published an article lamenting the supposedly low percentage of African-American players in major league baseball:

Major League Baseball is celebrating Jackie Robinson Day today. But 63 years after he broke the game’s color barrier, the number of African-American players continues to suffer, with 9.5% of them making opening-day rosters, according to USA TODAY research.

“He would turn over in his grave if he saw the lack of African Americans playing ball,” Minnesota Twins second baseman Orlando Hudson said.

MLB had its first increase in African-American players in 15 years in 2009 when the number climbed to 10.2%, according to the University of Central Florida’s Institute for Diversity and Ethics in Sport. This year, though, there were 17 teams with two or fewer African-American players on their opening-day roster.

“It makes you wonder a little bit what’s going on,” said Hudson, who this week questioned whether racism was a factor in former All-Stars Jermaine Dye and Gary Sheffield being unsigned.

Dye has hit at least 27 home runs in each of the last five seasons but batted .179 after the All-Star break in 2009. He and Sheffield, 41, have turned down several contract offers. 

This is not a new complaint and the numbers in the USA Today article give it some superficial plausibility. African-Americans (including mixed-race people) are about 13.5% of the overall US population, so the figure of 9.5% representation in baseball may seem low. However, it is important to remember that almost 28% of MLB players are foreigners. In recent years, Latin American and Asian players have flocked to major league rosters, displacing the weakest American players of all racial groups. If you consider the African-American percentage of US-born players, it is just over 13%, almost exactly on par with the black percentage of the overall population.

Despite this fact, it’s possible to argue that black players are victims of discrimination or that MLB is not doing enough to recruit black talent. Absent such factors, maybe the percentage of black players would be much higher than their percentage of the general population (as is the case in many other sports). At this point, however, there is little if any data to back up any such claims. Certainly, it seems highly unlikely that there is more discrimination against black players today than there was 30 or 40 years ago, when the percentage of African-Americans on MLB rosters was much higher. Rather, the percentage of black players has fallen partly because of the influx of foreign players and partly because many of the best black American athletes have focused on football and basketball, where salaries are higher. NBA players, for example, are the highest-paid athletes in the world. NFL players don’t make as much as MLB players, but there are many more players per team, and “skill position” players (the positions multisport athletes are likely to gravitate to) make more than linemen.

Finally, it’s worth noting that many of the foreign baseball players are themselves racially black (primarily black Latin Americans). If African-American players are being forced out by racism, it’s hard to understand why the supposedly racist management is hiring black Latin Americans instead. In sum, it’s doubtful that racism has been completely eliminated from MLB, anymore than it has anywhere else. But it’s unlikely that it (or inadequate recruitment) accounts for more than a tiny fraction of the decline in the percentage of African-American baseball players. 

If the sports media wants to focus on genuine mistreatment of African-American athletes (along with some of other races), they should cast a more critical eye on the NCAA cartel.

UPDATE: I wrote a somewhat similar post two years ago, responding to the same argument. The present post, however, has updated data.

Yesterday, I wondered whether the Obama Administration has pondered whether the Palestinians are at this point willing to accept a state based on the formula that “everyone knows” is the solution to the Israeli-Palestinian conflict: A Palestinian state in all of Gaza, and 90%+ of the West Bank, plus land swaps to make up for West Bank land that would be incorporated into Israel, with the Palestinians giving up the right of return.

I pointed out that surveys suggesting that Palestinians support establishing a state based on the ’67 boundaries does not answer the question, because such surveys don’t ask whether the Palestinians are willing to accept this as a final resolution of the conflict.

So here are some interesting data from a recent poll conducted by a Palestinian polling outfit based at a university in Nablus. The (relatively) good news: Do you accept the creation of a Palestinian state on the total area of the 1967 borders as a final solution for the Palestinian problem? Yes 51.7 No 44.7 

The bad news: Do you accept the creation of a Palestinian state within the 1967 borders with some land exchange as a final solution for the Palestinian problem [the far more plausible scenario]? Yes 28.3% No 66.7% 

The really bad news: Do you support or reject making Jerusalem a capital for two states: Palestine and Israel? Support 20.8% Reject 77.4%

These data raise serious issues regarding whether an Israeli-Palestinian settlement can currently be reached. Israel is not under any conceivable scenario going to uproot the almost 200,000 Jewish residents of East Jerusalem, nor is it going to evacuate the major settlement blocs. Yet only 20% or so of Palestinians would support a peace agreement that did not include these concessions, which suggests that the Palestinians support only a hypothetical peace settlement which they are aware is not within reach. If these poll numbers are an accurate reflection of Palestinian public opinion, the Obama Administration should spend its political capital elsewhere; pressuring Israel is not going to lead to a permanent settlement of the Israeli-Palestinian conflict.

H/T: Daled Amos

I wanted to remind readers about Jotwell – the Journal of Things We Like Lots — a website that has been up for a few months in which law professors blog about their favorite recent articles. 

Somewhat to my surprise, I find Jotwell interesting more for what it says about the bloggers who are making the recommendations than for what it says about the articles that are recommended. In picking what article they like and explaining why they like it, the contributing bloggers are disclosing what they personally value in legal scholarship. That part is actually really interesting. It’s a relatively rare insight into how different scholars think through what is good and what is not so good within their scholarly field (which it turns out to vary considerably among them).

Oh, and full disclosure, I’m one of the contributors; my first (and so far only) contribution is here.

“Senate Majority Leader Harry Reid says ‘we’re going to have comprehensive immigration reform now.’ Top political bloggers don’t see it.” So begins the National Journal’s write-up of this week’s blogger poll. Seventy percent of the Left and 78% of the Right called enactment of a comprehensive bill either “very” or “somewhat” unlikely. I was in the “very” group: “As the passage of ObamaCare showed, the Reid-Pelosi team has extraordinary talent at pushing unpopular legislation through Congress. But it seems unlikely that there will be enough swing-seat Democrats, who are already in enough trouble, willing to change their own chances of re-election from ‘difficult’ to ‘nearly impossible.’”

The second question asked the bloggers if they were open to supporting some form of a VAT. Only 1/3 of the Left and 1/6 of the Right expressed openness. I was part of that small minority: “If and only if accompanied by substantial, immediate fiscal reform, such as a balanced budget amendment, major entitlement reform, a large reduction in the percentage of the population who are consumers rather than payers of income tax revenues, and an iron-clad program to pay down the federal debt.”

Here are today’s opinion and the earlier opinion holding that plaintiffs had standing to sue.

I find this hard to reconcile with the logic of Marsh v. Chambers (1983), which upheld legislative prayers on the grounds that they go back to the founding of the nation; official proclamations of days of prayer, thanksgiving, and even fasting are just as firmly rooted. The opinion tries to distinguish those proclamations from the National Day of Prayer, but I don’t see the distinctions as having constitutional significance. And while it’s true that Thomas Jefferson refused to issue such proclamations, he was something of an outlier on this; and while James Madison expressed opposition to such proclamations at one point, he nonetheless issued them. Nonetheless, Establishment Clause doctrine related to government religious speech is quite ambiguous and contradictory, and it’s not clear exactly how large an exception Marsh carves out from the ban on government endorsement of religion — a ban that still has precedential support. And the judge’s opinion is indeed consistent with the other endorsement cases.

But what most interests me about the case is not the district court decision, but what might happen on appeal, and on certiorari. 

There now seem to be five votes on the Court for jettisoning the endorsement test. While Justice Kennedy takes a broader view of the Establishment Clause than do Justice Scalia and Justice Thomas (and, probably, Chief Justice Roberts and Justice Alito), he is on the record — in his County of Allegheny dissent (1989) — as opposing the no-endorsement interpretation of the Establishment Clause. What’s more, Justice Kennedy’s County of Allegheny opinion expressly pointed to the National Day of Prayer as something that should be upheld.

So if the government appeals — as I’m nearly sure that it will, given that the decision strikes down a federal statute — and the Seventh Circuit affirms the judge’s decision on appeal (far from certain, but possible), then I suspect that the Justices will agree to hear the case, reverse, and officially reject the endorsement test. Of course that rejection would itself probably last only as long as the conservative majority on the Court lasts, and that turns on many factors that are hard to predict.

A high-ranking NSA official has been indicted for leaking classified information and lying about it to investigators. The reported beneficiary of the leaks was Siobhan Gorman, then of the Baltimore Sun and now of the Wall Street Journal.

This is a big deal.  It’s been years since officials saw any real risk in leaking classified information.  This indictment will change the calculus, at least for members of the intelligence community.

It appears that the leaker did his best to defeat surveillance.  He obtained a Hushmail account to communicate with the reporter.  Hushmail offers encrypted webmail and operates from a server in British Columbia, where only a Canadian court can order it to assist law enforcemnt.  Even so, the leaker was identified and suspended in about a year.

How did that happen?  For starters, cyberspace is not completely anonymous.  Even if Hushmail’s encryption system were foolproof, webmail systems usually record the IP addresses of their users, which would allow investigators to confirm that the NSA official was using the service — and perhaps to associate the timing of the emails to the reporter’s stories, or even her own Hushmail use.  (I’m assuming the leaker used his home or, if he’s an idiot, his work computer; but even if he went to a cybercafe or wifi-enabled hotel lobby, it would still be possible to trace him with a bit of work.) 

Armed with that information, it wouldn’t be hard to obtain an order forcing disclosure of the content of the official’s emails, since leaking classified information is a crime.  Legally, that order would go through Canadian officials and courts, but in the end it would be served on Hushmail and honored.  As Hushmail has acknowledged, it has the ability to decrypt mail sent to its server when it receives a valid court order.

I think we’ll see more cases like this.  In my experience, most leakers, even of highly classified material, are motivated by surprisingly petty interests – things like spite, flattery, and a desire to win intramural debates by other means.  It’s not that the rewards of leaking are so great; it’s that the downside risk seems so small.  For the same reason, leakers often don’t use world-class tradecraft to protect themselves; they are protected largely by the perception, inside government and out, that leakers cannot be caught. 

But that’s no longer true.  We leave a much longer transactional trail in cyberspace than Deep Throat ever did.   And mainstream media is losing the financial and publicity clout it once used to protect leakers and reporters from investigation.   Brought by the Obama administration to punish leaks that hurt NSA in the last administration, this case could mark the end of an era — one that only really began in 1971, with the publication of the Pentagon Papers.

Yesterday, the New York Times reported on a sharp global decline in maternal deaths.  This is good news, right?  Not to some.  The Times also reported that some activists sought to pressure the Lancet into delaying or downplaying the findings.

some advocates for women’s health tried to pressure The Lancet into delaying publication of the new findings, fearing that good news would detract from the urgency of their cause, [Lancet editor] Dr. [Richard] Horton said in a telephone interview.“I think this is one of those instances when science and advocacy can conflict,” he said.

Dr. Horton said the advocates, whom he declined to name, wanted the new information held and released only after certain meetings about maternal and child health had already taken place.

He said the meetings included one at the United Nations this week, and another to be held in Washington in June, where advocates hope to win support for more foreign aid for maternal health from Secretary of State Hillary Rodham Clinton. Other meetings of concern to the advocates are the Pacific Health Summit in June, and the United Nations General Assembly meeting in December.

“People who have spent many years committed to the issue of maternal health were understandably worried that these figures could divert attention from an issue that they care passionately about,” Dr. Horton said. “But my feeling is that they are misguided in their view that this would be damaging. My view is that actually these numbers help their cause, not hinder it.”

Hat tip: Ron Bailey.  More from Matt Ridley.

Here are the details. Some unsurprising data, but some noteworthy; among other things, tea party supporters are more conservative than the public on social issues, but not vastly so — 40% think Roe v. Wade “was a good thing” (compared to 58% of the public), and their support for allowing same-sex marriage or civil unions is 57%-40% (compared to 63%-30% for the public at large). Support for same-sex marriage as such is considerably lower: 16% as opposed to 39%.

I’ve heard statements that tea party supporters are predominantly male, but the margin is 59%-41%; tea party supporters are thus predominantly male only to pretty much the same extent as college students are predominantly female (57%-43%, 2005 data) — there’s a gender gap, but the movement pretty clearly appeals both to many men and many women. (Bipartisan + sexes instead of parties = bisexual?) They are also somewhat better educated than the public at large (70% with some college or more, as opposed to 53% among the general public). And they are somewhat more prosperous (56% reported incomes of $50,000 and above, as opposed to 44% among the general public) but generally not by much (only 31% reported incomes of $75,000 and above, as opposed to 26% of the general public).

Among the interesting but relatively little-noted substantial differences: The yes-no breakdown as to household gun ownership was 58%-32% for tea party supporters, and 41%-56% for the public at large.

A California legal development from last year that I missed, in Cal. Code Civil Proc. §§ 1716–1717, amending California’s version of the Uniform Foreign-Country Money Judgments Recognition Act:

1716. ... (c) A court of this state is not required to recognize a foreign-country judgment if ...

(9) The judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions....

1717.... (c) If a judgment was rendered in an action for defamation in a foreign country against a person who is a resident of California or a person or entity amenable to jurisdiction in California, and declaratory relief with respect to liability for the judgment or a determination that the judgment is not recognizable in California under Section 1716 is sought, a court has jurisdiction to determine the declaratory relief action as well as personal jurisdiction over the person or entity who obtained the foreign-country judgment if both of the following apply:

(1) The publication at issue was published in California.

(2) The person who is a resident, or the person or entity who is amenable to jurisdiction in California, either (A) has assets in California that might be subject to an enforcement proceeding to satisfy the foreign-country defamation judgment, or (B) may have to take actions in California to comply with the foreign-country defamation judgment....

Sounds good to me. Thanks to my colleague Steve Yeazell for the pointer.

[UPDATE: Note the change in the legal analysis below.]

The Complaint is available here; it claims that the newspaper’s identifying Judge Shirley Strickland Saffold as the supposed author of items posted under the “lawmiss” account breached the newspaper’s Privacy Policy. A bit of background, from a WKYC story:

A comment by an Internet poster identified only as “lawmiss” on cleveland.com concerning the mental state of a relative of a Plain Dealer reporter was removed for violating the site’s policy against personal attacks.

The Plain Dealer reported March 22 that the online editor looked into who “lawmiss” was, and linked the “lawmiss” anonymous comments to Judge Saffold’s personal e-mail account.

Subsequent articles in the Plain Dealer noted that further investigation showed several “lawmiss” posts about an attorney....

[UPDATE: Whoops, I’d planned to include some more information, but neglected to; here it is:] The posts related to some of the cases decided by the judge herself.

A UPI story reports that the the judge and her attorney “claim any comments from a user going by the name ‘lawmiss’ connected to cases involving the judge were most likely left by the judge’s 23-year-old daughter Sydney, an aspiring law student,” though there is of course controversy about that.

Here’s my thinking: If the policy is seen as a binding promise on the newspaper’s part not to reveal commenters’ names, there’s no First Amendment problem with awarding damages for breach of that promise, even when the publication is on a matter of public concern and about a public figure. See Cohen v. Cowles Media (1991).

And it seems to me that the policy indeed promises not to disclose commenters’ identities, except in the ways that are specifically mentioned. The policy is described as involving “terms and conditions” that the user is said to “agree to” by using the Web site; that suggests that the newspaper is making binding promises there. 

Nor do any of the exceptions seem to apply here. In particular, the statement that “In addition, we reserve the right to use the information we collect about your computer, which may at times be able to identify you, for any lawful business purpose, including without limitation to help diagnose problems with our servers, to gather broad demographic information, and to otherwise administer our Website” (emphasis added), doesn’t seem to cover the publication of the name of the commenter (as opposed to information about the computer). This is especially so because reading the exception as covering all revelation of information for a “lawful business purpose” would essentially undo all the privacy protection that the rest of the policy provides.

UPDATE: On the other hand, as some commenters pointed out, the User Agreement, which is as binding as the Privacy Policy, provides, “You hereby agree to release service provider, its affiliates and third-party service providers, and each of their respective directors, officers, employees, and agents from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed ..., arising out of or in any way connected with your use of this site.” So it might be that this makes the Privacy Policy entirely unenforceable, if courts are willing to accept the user agreement as the all-encompassing waiver of any right to make any claims under any agreements that it seems to be. 

But have a look at the policy yourself, and see what you think. An interesting “it’s a small world” item: Ted Diadiun, the Reader’s Representative at the Cleveland Plain Dealer (which is the defendant in this case), was a codefendant in Milkovich v. Lorain Journal, the 1990 Supreme Court libel case.

The 2010 U.S. News and Word Report law school rankings have just been released, and can be found here.  As has been discussed elsewhere, these rankings are flawed ... but, at the same, are an influential fact of life.

A funny post from Geoffrey Pullum (Language Log).

From ASA Adjudication on Israeli Government Tourist Office:

A press ad, for holidays in Israel, stated “YOU CAN TRAVEL THE ENTIRE LENGTH OF ISRAEL IN 6 HOURS Imagine what you can experience in 4 days … DAY 1 TEL AVIV & JAFFA DAY 2 JERUSALEM … VISIT … NOW FOR MORE ITINERARIES IN ISRAEL”. Each day of the itinerary featured an image of the destination [including the Western Wall of the Temple Mount and the Dome of the Rock, which were both in East Jerusalem, a part of the occupied territories of the West Bank]....

The complainant, who said the photograph featured for Jerusalem was of East Jerusalem, challenged whether the ad misleadingly implied that East Jerusalem was part of the state of Israel....

The State of Israel Ministry of Tourism (SIMT), replying on behalf of the Israel Government Tourist Office (IGTO), said the ad provided basic, accurate information to a prospective UK traveller who wanted to know what to expect in Israel. They maintained that it was entirely accurate to assert that a visitor to Israel could visit Jerusalem as part of a short visit. Furthermore, they believed that, had the ad omitted a reference to a visit to the city of Jerusalem, it would have been incorrect and potentially misleading.

The SIMT maintained that Israel took responsibility to support the religious sites of all denominations, a commitment which also formed part of the obligations of an agreement with the Palestinian Authority signed in 1995. They pointed out that the agreement placed the upkeep of holy sites and the determination of tourist visiting hours under Israeli jurisdiction. The SIMT also maintained that the present legal status of Jerusalem had nothing to do with the point at issue. They said it was only of relevance if there was an attempt to interpret the straightforward message of the ad in a manner that went beyond what consumers were likely to understand from the ad....

We understood ... that the status of the occupied territory of the West Bank was the subject of much international dispute, and because we considered that the ad implied that the part of East Jerusalem featured in the image was part of the state of Israel, we concluded that the ad was likely to mislead....

The ad must not appear again in its current form.

We told IGTO not to imply that places in the Occupied Territories were part of the State of Israel.

This of course has nothing to do with consumer protection — consumers are not likely to make their travel plans based on judgments about whether the Western Wall is technically a part of Israel under international law. It has to do with censoring political opinions that the UK Advertising Standards Authority finds unpalatable. Unsurprising, but unfortunate. (Note also that nothing in the opinion turns on the ad’s being from a foreign government. The same logic would apply to British travel agencies whose ads express the view that the Western Wall is part of Israel.)

Thanks to Avi Bell for the pointer.

Students for Concealed Carry on Campus v. Regents of the University of Colorado. Decided this morning by the Colorado Court of Appeals (a three-judge panel of Colorado’s intermediate appellate court).  In brief: Colorado’s licensing statute for carrying a concealed handgun for lawful protection is explicitly preemptive. The University of Colorado bans concealed carry anyway, arguing that there is an implicit exception applicable to CU. The Mountain States Legal Foundation brings a suit on behalf of SCCC. The trial court dismisses for failure to state a claim. The Court of Appeals unanimously reverses the dismissal, and remands the case for further proceedings. The Court of Appeals holds that: 1. The statutory claim under the Concealed Carry Act should not have been dismissed, because there is no exemption for the University of Colorado. 2. The constitutional claim under the Colorado Constitution’s right to arms provision should not have been dismissed; the proper standard of review, under Colorado case law, is “reasonableness”, which is a higher standard than rational basis. The Court of Appeals expresses no opinion on the merits of the constitutional claim.

Congratulations to MSLF attorney Jim Manley!

UPDATE: Since the comments thread is mostly a discussion of empirical/policy issues, it is perhaps worth mentioning that the Court of Appeals opinion cites the two major relevant works on either side of the issue: the Brady Center’s monograph, and my article in Connecticut Law Review. The court adds that such questions are irrelevant to its decision-making, which seems to be the proper approach for a case that (for purposes of the Court of Appeals decision) involves statutory interpretation, plus articulation of the standard of review for the Colorado Constitution right to arms. Since the statutory interpretation issue basically resolves the case conclusively in favor of Students for Concealed Carry, the trial court on remand probably will not even need to reach the constitutional question. If for some reason the trial court does need to make a constitutional decision, then the court would need to consider empirical evidence and policy issues, as does any court applying any heightened form of review.

What is the smallest positive integer that, when written out in standard English, does not yield any Google searches? Do not use “and“s, and do not use the format in which hundreds are counted using numbers greater than ten (e.g., “forty two hundred eighty two” — that’s acceptable standard English, but I just want to set it aside for purposes of the puzzle, because it’s a somewhat less common variant). 

I got zero hits with “fourteen thousand nine hundred eighty two” (just a bit of trial and error there), though obviously that number will have hits very soon, as a result of this post. Can you beat that? Please check your spelling before reporting victory.

I was just rereading the D.C. v. Heller footnote that says, ““We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive,” and the thought came to my mind — this is a reverse Ninth Amendment (at least if you focus on the Ninth Amendment’s text). The Court is making clear that its decision is not intended to foreclose the development of other exceptions from constitutional protection, though it also isn’t creating such exceptions itself. “The enumeration in the [opinion] of certain [powers to restrict or regulate gun possession] shall not be construed to deny or disparage others retained by the [government].”

Cato Unbound has an excellent symposium on “libertarian paternalism,” the theory that argues that government should intervene to protect people against cognitive biases that lead them to make decisions that ultimately reduce their ability to achieve their own objectives. Advocates of libertarian paternalism argue that their approach is different from and superior to traditional paternalism, which imposes the paternalists’ own values on those subject to regulation. Overall, I largely agree with the criticisms of libertarian paternalism in the Cato symposium by Glen Whitman (here and here) and Jonathan Klick. However, I wish to focus on a different weakness of libertarian paternalism: the implicit assumption that voters and government regulators are not subject to serious cognitive biases of their own.

It may well be that private citizens acting in markets and civil society often make decisions that they later regret because of cognitive errors. However, regulators and voters are people too. They also might make bad decisions because of cognitive errors. Libertarian paternalist scholars generally ignore this possibility by implicitly comparing perfectly rational regulators with often irrational consumers. But there is no a priori reason to believe that the former are more rational than the latter.

I. The Cognitive Biases of Regulators.

Indeed, there are good reasons to believe that regulators are likely to be more susceptible to cognitive biases than private sector consumers. This is so for at least three important reasons. First, regulators are making decisions for others, not for themselves. As a result, they have less incentive to get them right. If regulators in the proposed Consumer Financial Protection Agency ban financial products that are of great value to consumers, the regulators themselves won’t suffer (unless they happen to want to purchase those products themselves). The less people have at stake in the decisions they make, the less incentive they have to control their cognitive biases. 

Second, we are naturally more ignorant of the preferences of others than our own. Regulators have no reliable way of estimating the benefits that consumers derive from potentially risky products. When making decisions for other people, we are therefore prone to the cognitive bias of assuming that what they “really” want is what we ourselves would prefer in their place. It may, for example, be difficult for a health-conscious upper middle class regulator to believe that a consumer might genuinely prefer the pleasures of eating large numbers of cheeseburgers to the health benefits of a more balanced diet. Thus, he will be likely to put down decisions to consume huge numbers of cheesburgers to consumer “irrationality” and favor paternalistic anti-obesity regulations.

Third, regulators will be making decisions for thousands or even millions of consumers. This requires much greater information and analytical skill than the individual consumer’s task of deciding for himself or perhaps also his family. The more complex the task, the greater the temptation of trying to simplify it with cognitive shortcuts that are prone to bias and may well turn out to be misleading. 

II. Voters May be Even Worse.

Of course expert regulators aren’t the only people with influence over paternalistic policies. In a democratic society, voters will have a lot influence too. And, as I have pointed out in previous critiques of libertarian paternalism (see here, here, and here), voters have strong incentives to be both ignorant about public policy and highly irrational in the way they analyze the limited political information they do have. Because the chance that any one voter will influence an electoral outcome is infinitesmally small, most voters have little incentive to either acquire much information about the choices before them or make a strong effort to control the irrational biases they may bring to its evaluation. By contrast, when consumers purchase products in the market, they know that their decisions are decisive and therefore have much stronger incentives to make rational choices. 

Once we recognize that voters and regulators are also subject to cognitive biases and that they have only weak incentives to combat those biases, the case for libertarian paternalism is significantly weakened. What I find strange, however, is that prominent libertarian paternalist scholars have paid so little attention to this problem. Cass Sunstein, one of the leading academic advocates of libertarian paternalism, has written some brilliant work on regulatory irrationality in other contexts, including his excellent 2002 book Risk and Reason and an important 1999 article coauthored with economist Timur Kuran.

Lastly, it’s important to note that everything I have said above assumes that voters and regulators designing libertarian paternalistic policies have good intentions; that both are genuinely trying to adopt only those regulations that will help people correct their cognitive biases and more effectively achieve their goals. Once we recognize, as Whitman and I have pointed out elsewhere, that regulatory agencies implementing these policies are subject to interest group “capture” and slippery slope effects, the case for such regulation becomes weaker still.

UPDATE: I know some will argue that regulator and voter biases don’t matter much because libertarian paternalists advocate only noncoercive “nudges” that still leave the final decision up to individual choice. However, as Whitman notes in the Cato symposium and here, they in fact advocate many policies that go well beyond that. Moreover, one important consequence of voter ignorance is that voters are unlikely to make fine-grained distinctions between “libertarian” paternalistic policies and more heavy-handed ones. As a result, libertarian paternalist policymakers may find it very difficult to limit the scope of government intervention to the types of “nudge” policies they initially envisioned.

I’m delighted to report that my friend Ed DuMont has been nominated to sit on the U.S. Court of Appeals for the Federal Circuit. I’ve known Ed since 1993, and think very highly of him: He’s extremely smart, thoughtful, calm, and fair-minded. He’s also a very experienced appellate lawyer, at the highest levels; besides being an appellate lawyer at Wilmer Hale — a top D.C. law firm — he worked for several years at the Solicitor General’s office, and has argued 18 cases before the Supreme Court. He also clerked for Judge Richard Posner on the Seventh Circuit, who is one of the top scholars and judges in the nation.

Rather than focusing on cases coming from a particular geographical area, the Federal Circuit “has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans’ benefits, and public safety officers’ benefits claims.” It is thus an unusually apolitical appellate court, which I hope means that Ed won’t run into the usual buzzsaw. (Just to give one example, the Federal Circuit cited Roe v. Wade once in the last 10 years, in a 2004 case dealing with a federal statute that barred federal funding for abortions in the Civilian Health and Medical Program of the Uniformed Services; the Circuit rightly upheld the statute, applying squarely on-point Supreme Court precedent. The most recent citation to Roe before then came in a 1997 case, which cited Roe for the proposition that, for federal courts to have jurisdiction, “controversy ‘must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.’”)

And beyond that, I’ve always found Ed to be the sort of moderate liberal that conservatives have every reason to like and get along with. The fact is that President Obama isn’t going to appoint conservative or libertarian judges. Of the nominees that President Obama is likely to appoint, I can’t think of any whom I would respect and trust more than I respect and trust Ed; and I suspect that most of them would be to the left (even well to the left) of Ed. I think that others who share my general political leanings should likewise be delighted with the appointment of a lawyer of Ed’s intellect, experience, judiciousness, and moderateness.

UPDATE: A comment from Orin Kerr: “I know Ed, too, and I think very highly of him. He’s a lawyer’s lawyer, and I think he would be a real asset to the Federal Circuit bench.”

FURTHER UPDATE: A comment from John Elwood, who overlapped with Ed Dumont at the Justice Department: “[A]nother in a series of fine nominations (and, I hope, eventual appointments) to the Federal Circuit, along with Bill Bryson and Tim Dyk–people who got the job more from sheer competence than connections (although connections don’t hurt).”

And a comment from Ken Anderson: “Ed DuMont is a very old friend, dating back to our days as junior associates at Sullivan & Cromwell, clear back in the 1980s. I can’t think of a better nomination to the federal bench. It’s not just brains and skill as a lawyer — I have known Ed for decades, and I do not believe I have ever known a lawyer who so much exemplifies that elusive quality of ‘judicial temperment.’ He is a wonderful person, measured, careful, technically sensitive, and deeply fair. This is a wonderful nomination.”

With the Obama Administration apparently prepared to ramp up the pressure on Israel to arrive at a settlement with the Palestinians, including the possibility of the Administration presenting its own peace plan as a more or less done deal, I hope someone in the Administration pauses to ask the question “what if the Palestinians don’t want a state?”

Of course, phrased that broadly, the notion is absurd. The Palestinians clearly would want a state if it meant displacing Israel with an Arab-majority state. But what if the Palestinians don’t want, or their leadership is unwilling to accept, a state on the terms that “everyone knows” would be the basis of a peace settlement–a state approximating the total land area of the West Bank and Gaza circa 1967, with territorial adjustments to account for large Israeli settlement blocs, and perhaps for large Arab population centers within Israel near the ’67 boundary? This state would also be charged with resettling descendants of Arab refugees from the Arab-Israeli wars, with few or none returning to what is now Israel.

What if, just as many prominent Israelis are more or less satisfied with current status quo, the Palestinian leadership is content for now with the Palestinians having “won” the rule of all of Gaza and 70% or so of the West Bank without giving up their claim to the right of return, or, for that matter, their desire for the ultimate destruction of Israel? 

Perhaps someone can point me to a statement by a prominent Palestinian political leader to the effect that if the Palestinians were given all of Gaza and the land equivalent of 100% of the West Bank, they would sign a permanent, final peace treaty recognizing Israel as the Jewish state envisioned by U.N. way back when (so long as it guaranteed Arab minority rights), and giving up both the right of return and any future claims on Israeli land. Or even a political poll that shows anything approaching a majority of Palestinians would support this result (as opposed to the more weasily question of “a peace settlement based on the 1967 broders” with no mention of giving up the right of return).

The Netanyahu government is more to the right than my own sentiments on the conflict, and one result of this is that the attention has largely focused on what amount to irrelevancies that tick off the Obama Administration, like building in Jewish neighborhoods in Jerusalem. Meanwhile, and more ominously for peace prospects, Netanyahu has expressed over and over his desire to start direct, final status negotiations with Abbas, who has responded with a series of increasingly onerous demands before he will commence negotiations.

The Obama Administration, apparently assuming that Netanyahu is the problem, has sided with Abbas and taken measures that seem designed to either bring him down or force him into a more moderate coalition. But, as several commenters, including some lukewarm to Israel have pointed out, Obama would do better to save his ammunition for the point in which the Palestinians are ready to reach a reasonable deal, and Netanyahu demonstrates intransigence. (And, I would add, in Israeli politics a “right-wing” government is more likely to be able to sell a peace deal to the public than a center-left government.)

One advantage of that strategy would be that before the U.S. became too intimately involved in the process, as it’s threatening to do, we could find out if the Palestinians are, in fact, interested in a deal with reasonable parameters. The Obama Administration seems to assume they are, but so did Bill Clinton in 2000, and he’s regretted it ever since. And if we were to assume that the U.S. has the power to impose a settlement on reluctant Palestinians, it still might not be a great idea. Consider Barry Rubin’s suggestion:

And so if Obama were to implement any conceivable negotiated solution–even an extremely pro-Palestinian one by Western standards–he’d be labeled as the man who sold out the Palestinians and go down in history as a betrayer and Zionist imperialist.... The United States would not be portrayed as a hero because it created Palestine but a villain because it robbed the Arabs of getting everything some day. Terrorism against American targets would go up, as it would argued that the Americans had forever destroyed the chance of wiping Israel off the map. Of course, terrorism against any Palestinian leaders who agreed to such terms would also break out.

UPDATE: I should add that I’m not arguing that I know for certain that the Palestinian leadership would refuse to accept a deal within the “everyone knows” parameters. I am merely pointing out that this is something that the Obama Administration seems to be assuming, even though the available evidence is hardly dispositive.

A reader sends me the following comment, further to the several VC posts on behavioral economics (initially occasioned by Andy Ferguson’s Weekly Standard essay):

One basic issue that this whole-“behavioral econ– good-or-bad?”
discussion seems to have neglected the following simple point: welfare
evaluation is much harder with “behavioral agents” than “rational
agents.”

With “rational” agents we know that subject to tons and tons of
asumptions markets are great (first welfare theorem).  And we have a
pretty good idea of what constitutes a market failure (externalities)
and when a “social planner” can help.  Thus, there is a principled
econ case for certain forms of “social planner” intervention that we
know will raise welfare (whether a government can act as an optimal
social planner is another question).

With “behavioral” agents, the basic issue is that people’s preferences
are at some level time-inconsistent.  My self of today wishes that my
self of tomorrow would put money in to a 401(K) but my self of
tomorrow wishes it to be the next period’s self and etc.  Thus, the
person sitting at today does *not* have the same preferences as the
person sitting at tomorrow.   If you make the person of today put
money into a 401(k) *today* you make them worse off (since they wanted
to put money in a 401(k) tomorrow), but you make their yesterday’s
self happy.   As a social planner, whose utility do you maximize?

It’s not obvious how you do this.  There are some attempts to work
this out in the literature (e.g. http://www.nber.org/papers/w13737)
but it’s not settled.

I guess the main take-away is that claiming policy implications from
behavioral research is *much* harder than from other kinds of econ
research, so at some level behavioral people are jumping the gun a bit
in claiming that they have a new way to do policy; and this objection
is totally independent of worries about slippery slopes and whatnot.
That said, much of the actual-existing behavioral influenced policy
moves (e.g. doing stimulus through withholding rather than lump sum)
seems like a good idea since it is formally identical to what would
have been the status quo.

The paper cited at NBER is interesting, but I would add that this seems to me an area in which philosophy does have something to say.  The problems of the self over time have been much discussed, and at least some of the leading arguments about “whose” utility you maximize have been formally adduced, including the proposition that this present-self, future-self, successive-selves way of thinking about things is appealing in part because it matches up to marginality analysis, but is not coherent as an account of identity.  This is not an argument about values or an argument from moral philosophy; it is an argument about the nature of identity and self, and I think the philosophers of mind, identity, and such fields do indeed have something to say as to the conceptually valid and invalid ways of framing the issue of the self.

(In a quite different approach to the time-identity problem, framed as a matter of constitutional law and politics, I recommend highly Jed Rubenfeld’s short, compelling book, Freedom and Time: A Theory of Constitutional Self-Government.  When it first appeared, I found it — with apologies to Jed — very smart but frankly weird.  It has grown on me since then — grown on me a lot.)

Thanks to the VC reader for this thoughtful comment.

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a very interesting post (linked in Robert Wright’s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist):

State Department Legal Adviser Harold Koh’s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targeted American-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.  Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.

My dear friend Sandy Levinson posts briefly on this over at Balkinization, and comments on a speech by Jack Goldsmith at University of Texas:

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the “anti– and counter-terrorism” policies of the “second Bush Administration,” i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith’s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.

Curiously, this is one of the few matters on which I think that the Obama administration is not actually continuing the Bush administration policies — at least if policies includes legal justification as well as surface actions.  Legal Adviser Koh’s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people.  For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales.  And yet the self-defense rationale has the further characteristic of being a break with the Bush administration — while also being a return to a longer, and deeper tradition in the use of force by the United States.

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important — but by the press largely not-understood as being important — prefatory framing remarks about the internal jurisprudence of the executive branch.  Those methodological remarks were at once a response to Koh’s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his left.

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy’s assessment.

I’ve often seen this supposed quote from George Washington, including in books of quotes:

Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.

But I wanted to note that it’s not at all clear that Washington ever actually said this. I searched for it in various databases, and the earliest reference I found to it was in a 1902 source. Others have likewise noted that the quote might well be apocryphal. 

The only sources I’ve seen mentioned for the quote are Washington’s Farewell Address (rarely) and the Jan. 14, 1790 Boston Independent Chronicle (more often). It’s not in either. I’ve checked the Independent Chronicle issue in an online database to which UCLA has a subscription, but the Washington speech printed there is this speech, which does not include the quote. (The citations I’ve seen generally say that the Independent Chronicle issue reprinted a Jan. 7, 1790 speech; the speech in the Jan. 14, 1790 Boston Independent Chronicle is a Jan. 8, 1790 speech, but the first item in that article bears a Jan. 7, 1790 reference.)

What’s more, there was indeed a fire/servant/master phrase in common use in the 1700s, but it was “fire is a good servant but a bad master.” Our lawyers readers might be amused to know that Sir William Blackstone used that phrase in some commentaries on Shakespeare (who knew?), describing it as a proverb. (The same construction was also used about love, money, wine, imagination, and other things.) 

Given this, it would have been odd for someone to say “Like fire it is a dangerous servant and a fearful master,” with negative qualifiers both for servant and master, when the proverb had a positive for the servant but a negative for the master. Of course, the point of the proverb was that fire is indeed dangerous — but the dangerousness was conveyed by implication from “bad master,” and was counterposed to the value stressed by “good servant.”

Now it’s hard to prove that Washington never said this; but until I see a reliable source for it, I’d be skeptical. I certainly wouldn’t report the quote without noting at least that it might well be apocryphal, though I would go further and say that it is probably apocryphal.

UPDATE: Commenter Martha suggested I ask Fred Shapiro, editor of the excellent Yale Book of Quotations, so I did, and he promptly responded:

This is undoubtedly apocryphal, like many other quotations attributed to Lincoln or Washington. No one has ever found any evidence that Washington said it. In the next edition of the Yale Book of Quotations, barring any further discoveries, I will list it as a pseudo-Washingtonism, with the earliest known citation being [in 1902].

Many thanks to Prof. Shapiro for his help!

I was reminded today of one of my favorite jokes: A Frenchman, a German, and a Jew were asked to write books about elephants. The German writes a seven-volume treatise, Die Elefanten. The Frenchman writes The Love Life of the Elephant. The Jew writes Many Famous Elephants Were Jewish.