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Revamping Philadelphia’s Tax System

2009-11-14T19:14:57-00:00

Last week, the City of Philadelphia Task Force on Tax Policy and Economic Competitiveness delivered to the mayor and City Council its final report,Thinking Beyond Today: A Path to Prosperity. Although the report includes analyses of and recommendations with respect to things such as business activity regulations, zoning, publicity, government procedures, health care and pension spending, and other steps to making the city economically viable, it’s the tax proposals that caught my attention.

The premise of some of the tax recommendations is that the city should tax things that are immobile and not things that are mobile. The thinking, it appears, is that jobs can “walk” away from taxes whereas fixed assets cannot do so. Thus, the Task Force suggests that the planned cuts to the wage tax and the business privilege tax be resumed in 2012 and that wage tax rates be “more aggressively” reduced. There is a practical flaw in the premise. If the taxes on fixed assets, such as buildings, are too high, they are abandoned. That does not bode well for economic development. There is another flaw in the proposal, one that rests on principle. Jobs impose burdens on the city, no matter where the employee resides. The cost of providing infrastructure for people commuting into the city, the cost of police protection, traffic maintenance, and the other services rendered to nonresidents, if not borne by those who benefit, will be imposed on city residents. Municipalities throughout Pennsylvania have been imposing taxes, such as the Emergency and Municipal Services Tax, designed to shift to nonresident employees their share of the services provided by the local government in question. This approach, which pushes taxation in the direction of user fees, makes more sense.

The Task Force also suggests increasing the amount of revenue derived from the real property tax. If revenue increases arise because the currently flawed real property tax system in the city is fixed and assessments are adjusted to market value, this suggestion is worth pursuing. To its credit, the Task Force also recommends fixing the real property tax system. On the other hand, if revenue increases are accomplished through increases in the real property tax rate, that’s counterproductive. As much as wage taxes theoretically drive employees and businesses out of the city, so, too, real property tax increases will drive not only employees and businesses out of the city, it will also encourage tax-paying residents to flee. The Task Force proposes to avoid this latter effect with a homestead exemption, designed to shift the real property tax burden to commercial and industrial properties. This, however, simply exacerbates the former effect, for it means that businesses will face higher real property ownership costs or rental fees, and despite reductions in business privilege and wage taxes, will continue to relocate outside the city. For this shift to encourage the opposite effect, businesses moving to the city, the wage and business privilege tax decreases need to exceed the real property tax increases. But if this happens, the city’s budget deficit grows.

At a technical level, the Task Force recommends that the city adopt “market-based” sourcing in determining how much of a service company’s profits should be taxed by the city when the company performs services both within and beyond the city limits. Under this approach, which has been adopted by many states and localities, the company is taxed on profits derived from services rendered in Philadelphia and not on profits generated from income-producing activities in Philadelphia. In other words, if the activity is performed in Philadelphia but is delivered outside the city, the only profits that would be taxed are those arising from the delivery of services in the city, which could be as little as zero. Similarly, if the company engages in the income-producing activity outside the city but delivers it into the city, the only profits that would be taxed are those arising from the delivery of services in the city, which could include profits not currently being taxed. This approach currently is used for manufacturing companies, so extending it to service companies makes sense, provided that the company is taxed in some way, or charged a user fee, for the burden it imposes on the city by engaging in business activities in the city. Opponents of such taxes and fees would claim that the companies ought not be taxed because they are “doing a favor” to the city and its residents by bringing jobs and business activity to the city, but that argument too much resembles the “trickle down” justification for federal income tax cuts benefitting the wealthy and causing economic distress for everyone else.

The other technical recommendation is to shift from a three-factor formula for apportioning income to a single sales factor formula. This is another shift that has been taking place throughout the nation, and it does make sense to drop the property and payroll factors because if those factors are to be taxed they should be taxed directly, as they are. It is almost a double counting to bring them back into the analysis for income and receipts taxation. According to the Task Force, this change would decrease tax revenue, but is justified because failure to make the change will impede efforts to bring businesses into the city.

Another technical recommendation is that the city conform its tax laws to those in use by federal and state revenue agencies. For example, the city’s definition of unearned income differs from that used by the Commonwealth of Pennsylvania. Again, it makes sense to remove what is an opportunity for confusion and unintentional noncompliance, and to eliminate the expense of getting the taxpayer to fix the problem. Unfortunately, Pennsylvania is one of those very few states that itself uses a set of tax definitions that is nowhere near conformity with the federal tax system. Getting the city to conform to the state is but one step, and getting the state to conform to the federal system would help the city improve tax compliance. In that regard, the Task Force also recommends establishing an office of a Tax Advocate, patterned after the IRS Tax Advocate position. That is a good idea, and one too long delayed. The Task Force also recommends improvements in taxpayer service, increasing competence of tax agency employees, improving coordination with the Pennsylvania Department of Revenue, and consolidating tax enforcement and collection resources. These, too, are good ideas, but one easily can imagine the objections that will be raised by those with vested interests in the present system.

The recommendation for tax amnesty, although patterned after similar programs in other places, is questionable in terms of long-term impact. Tax amnesty tells those taxpayers who have complied, “Fools. Had you cheated, you’d be off the hook. You could delay paying your taxes without paying interest while the cheaters had interest-free use of the money that they should have been paying in taxes.” It tells people who are thinking of following a path of noncompliance, “Not only is there a good chance you won’t get caught, but there’s a chance another tax amnesty program will bail you out in the future.” On the other hand, an amnesty that waives criminal tax penalties for taxpayers who turn themselves in might be worth pursuing.

Though some suggestions in the report are questionable in terms of impact, many others are worth implementing quickly, in part because they reflect common sense and should have been implemented by city officials years ago. There will be debate over the substantive proposals, with discussion beginning when several city council members complained that their ideas had not been included, but that is how progress is made. As the vice-chairman of the task force stated, as quoted in Report: City Should Shift Tax Burden to Property Owners, "[T]he cost of inaction is even more troubling."

The chairman of the Task Force noted, "Recommendations to improve the tax structure have been offered in report after report, but while there have been some improvements, implementation has not been comprehensive due to concerns about the costs and risks of change." It remains to be seen whether this report is just another in the long line of tax reform reports that have been shelved or the beginning of genuine tax reform in a city that for too long has been an example of what happens when tax policy is not well thought out and tax administration is inconsistent and politicized.

Why Didn’t the Federal Government Even Try to Argue the Commerce Clause in its Supreme Court Brief in United States v. Comstock?

2009-11-14T19:14:57-00:00

I am currently in the process of drafting an amicus brief in the Supreme Court case of United States v. Comstock, on behalf of the Cato Institute and co-blogger Randy Barnett. As you can probably guess, we will be arguing that Article I of the Constitution does not give Congress power to retain custody of “sexually dangerous” persons held in federal prisons after their term of imprisonment ends.

I was extremely surprised to learn that, in her Supreme Court Petitioner’s brief for the federal government, Solicitor General Elena Kagan, is not arguing that Congress has the power to enact this law under its power to regulate interstate commerce. Instead, she is arguing only that Congress has the power to hold the “sexually dangerous” former convicts under its power to operate a federal prison system and the Necessary and Proper Clause This, despite the fact that existing Supreme Court precedent lends considerable support to a Commerce Clause argument. And of course the Fourth Circuit considered the Commerce Clause issue when it ruled against the government in the decision that led the Supremes to take the case.

Why would the Solicitor General choose to forego a potentially winning argument? One possibility is that she simply doesn’t think that it is likely to win. But even if she is uncertain about the prospects, why not at least try? After all, nothing prevents the United States from making both the Commerce Clause and Necessary and Proper Clause arguments. Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority.

The last possibility that occurs to me is that the administration expects the Commerce Clause argument to lose. And if it does so, they fear that it will create an unfavorable precedent for the federal government in future cases; even if the feds manage to win the case on the narrower penal system argument, that theory would not apply to other matters that the feds might seek to regulate under the Commerce Clause. As a result, the SG be willing to forego a (small) chance of winning the case on the Commerce Clause in exchange for increasing the likelihood that the Court might avoid the Commerce Clause issue entirely in making its ruling. If this conjecture is correct, it suggests that Kagan and the administration believe that the justices are more willing to cut back on Raich than I fear might be the case. If that really is the reason for the government’s posture in Comstock, I would be very happy. Kagan and her staff surely have a lot more inside information about the justices’ views than I do.

Of course, it’s always possible that they have some other reason entirely for omitting the Commerce Clause. There are a lot of outstanding appellate lawyers in the solicitor general’s office, and one of them could have come up with some clever tactical reason for taking this approach that I simply haven’t thought of.

NOTE: I should emphasize that the above speculations are solely my own conjectures and do not necessarily represent the views of the Cato Institute or Randy Barnett, or the other lawyers who are helping draft the brief.

Links for 2009-10-27 [del.icio.us]

2009-11-14T19:14:57-00:00

Windows 7 upgrade paralyzes some PCs with endless reboots

Can Obama accept the Nobel Prize without congressional consent?

2009-11-14T19:14:57-00:00

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift” is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

Precedential No. 43: TTAB Enters Partial Summary Judgment in 2(d) "VUDU" Opposition

2009-11-14T19:14:57-00:00

Applicant Vudu, Inc. failed to ward off completely Hewlett-Packard's motion for summary judgment aimed at the mark VUDU for goods and services in classes 9, 35, 38, 41, and 42, relating to the broadcast, storage, and playback of video content. H-P relied on its registered mark VOODOO in standard character and design form (shown immediately below), for personal and gaming computers in class 9, and for computer manufacture and design services in classes 40 and 42. The Board found confusion likely as to Applicant's class 9 goods, but genuine issues of material fact prevented entry of summary judgment as to its services. Hewlett-Packard Development Company, L.P. v. Vudu, Inc., Opposition No. 91185393 (October 26, 2009) [precedential].

There was no real dispute as to the similarity of the marks VUDU and VOODOO. Applicant's arguments about the different ways in which the party's marks are displayed was, of course, irrelevant. Therefore, the key issue was: guess what?

Class 9: Applicant's class 9 goods included "computer software for use in computers for the transmission, storage and playback of audio and video content." H-P's registration was "not limited to specific types of personal and gaming computers or to specific channels of trade" and so the Board presumed that H-P's goods "encompass computers which would use applicant's computer software for use in computers for the transmission, storage and playback of audio and video content." Applicant Vudu did not contest the assertion that consumers could use its software in H-P's computers.

Vudu lamely argued that there is no relationship between its set-top boxes and H-P's computers because "the set-top boxes have a specialized application, and allow consumers to stream high quality video content to their televisions." The Board observed that while this restriction "may be implicit in the identification of other goods or services in applicant's identification, but it is not reflected in the identification of the computer software ...." In short, as the Board observed for the millionth time, the determination of likelihood of confusion must be based on the goods as identified in the application, regardless of what the record may reveal as to the particular nature of the goods.

The Board therefore granted H-P's summary judgment motion as to Vudu's class 9 goods.

Classes 35, 38, 41, 42: The Board found that Vudu's recited services "have no obvious relationship to the goods and services in the pleaded registration." In fact, H-P "presented no evidence on this point," but merely alleged that consumers could find both parties' services on the Internet. "However, countless products and services can be found on the Internet and in the circumstances of this proceeding, this is not sufficient to show the absence of a genuine issue as to the relatedness of the goods and services."

And so the Board denied the other four-fifths of the summary judgment motion.

TTABlog comment: What makes this decision precedential, I wonder?

This case reminds me of a joke I once made. A friend a mine asked me if I wanted to watch a zombie movie on television, and I replied, "I Haiti that kind of movie, but I'll watch if voodoo." LOL !!! Sometimes I just crack me up.

Text Copyright John L. Welch 2009.

Our Own Orin Kerr Cited Five Times by Tenth Circuit Decision

2009-11-14T19:14:57-00:00

It’s the one that Orin discusses below, but he was too modest to note the court’s reliance on his own work.

Louis Brandeis and the Incorporation Doctrine

2009-11-14T19:14:57-00:00

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book. But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment ... was intended to extend the protection of the Bill of Rights to the states. Brandeis took this position in his dissent in Gilbert v. Minnesota.” False. You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]”. False. There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent. Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words. False. Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.” False. The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as two additional votes, includng, if I recall correctly, Justice Stephen Field’s), that the rights enumerated in the Bill of Rights also applied to the states.

Earlier, on p. 619, Mel correctly notes that Brandeis only identified the rights to speech, education, choice of profession and travel as fundamental rights deserving protection under the Due Process Clause. Moreover, Brandeis would have preferred that the Due Process Clause not apply to any substantive rights at all, but insisted that all fundamental rights be protected if liberty of contract was to be protected. Also, in 1897, well before Brandeis joined the Court a unanimous Supreme Court noted that the Fourteenth Amendment’s Due Process Clause protected not just liberty of contract, but “freedom from all substantial arbitrary impositions and purposeless restraints.” Finally, if we are going to anachronistically consider pre-New Deal Due Process opinions that protect rights that happen to be mentioned in the Bill of Rights to be “incorporation” cases, even when no provision of the Bill of Rights was relied upon, it turns out that the Supreme Court “incorporated” the Takings Clause of the Fifth Amendment in 1897, twenty-three years before Brandeis’ dissent in Gilbert.

(5) p.632: Brandeis “especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states.” False. Again, the pre-World War II Justice who consistently plugged something resembling the modern incorporation doctrine was Harlan, and it was he, not Brandeis, whom Justice Hugo Black later cited in advocating incorporation (though unlike Black, Harlan believed that the Fourteenth Amendment also protected unenumerated rights). And it’s not like the idea was otherwise unheard of before Brandeis. In 1908, the Supreme Court stated that “some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.” A year earlier, the Court had reserved for the future the question of whether “there is to be found in the Fourteenth Amendment a prohibition [of restriction of freedom of speech] similar to that in the First.”

(6) p. 632 “Brandeis had first planted the seed [of the incorporation doctrine]” and McReynolds had advanced the cause in his two school opinions [Meyer and Pierce v. Society of Sisters]. False. Neither case had anything to do with incorporation of the Bill of Rights. Both cases were quite clearly what we now refer to as pure “substantive due process” opinions, applying unenumerated rights against the states via the Due Process Clause without any reference, even implicit, to the Bill of Rights.

I think I had noticed a few other examples, but I can’t find them right now, and I think I’ve made my point.

Don’t let this discourage you from buying this book, which is a wonderful resource on the life and accomplishments of Justice Brandeis. But on this particular issue of Brandeis’s influence on incorporation, it happens to be wrong.

Benefits and costs: crime, crime avoidance, crime control

2009-11-14T19:14:57-00:00

Crime has been a badly underestimated problem: more so among scholarly experts than among ordinary citizens or elected officials. A1% reduction in crime provides economic value — measured in terms of willingness-to-pay – of something like $15 billion a year.

The material losses due to victimization are only a small part of the crime problem. For example, property losses from residential burglary average out to $4 per house or apartment per month. And yet, in a survey, people asked how much they would be willing to pay out of their own funds to reduce burglary in their community by 10% gave an average answer of $100 per year.

One difference between victimization losses and other costs is that victimization doesn’t just happen. Victimization is done to someone by someone else. Being singled out – even anonymously – by another person for ill-treatment is a different experience than being the victim of mere happenstance. “Even a dog,” said Justice Holmes, “knows the difference between being stumbled over and being kicked.”

As a result, people make extensive efforts to avoid being victimized: everything from double-locking doors to moving to the suburbs. How, in the absence of crime, could one account for the coexistence of housing abandonment and new housing construction only a few miles apart? The direct and secondary costs of crime avoidance easily swamp the immediate costs of victimization.

Now, it might seem that if avoidance costs exceed victimization losses, the avoidance costs must be irrationally high. Not so. The victimization losses we observe are those that remain after potential victims have taken countermeasures in the forms of locks, burglar alarms, gated communities, and suburban addresses. One reason crime has fallen in the past decade is that potential victims – households and businesses – have moved away from high-crime neighborhoods into low-crime neighborhoods.

Much crime-avoidance behavior is wasteful from a social perspective, but not from an individual perspective. If my putting a burglar-alarm sticker on my front door simply leads a burglar to break into my neighbor’s home instead, the victimization loss is shifted rather than avoided, and in effect I incur a real resource cost to make sure that someone else suffered the cost of being burglarized. But that fact makes putting up the sticker no less rational for me as an individual.

Crime-avoidance behavior can impose costs on others beyond shifting crime risk. Residents and businesses fleeing high-crime neighborhoods generally make things worse for those who stay behind; abandoned houses make bad neighbors and shuttered factories and stores provide no jobs. Crime thus becomes an important sustaining cause of concentrated poverty, turning an old notion on its head.

Costs and Benefits in Crime Control

The current total budget for law enforcement and criminal justice, adding together all levels of government, comes to about $200 billion a year. If a 1% reduction in crime is worth $15 billion, even modestly successful crime-control efforts can easily justify their budgets. Even as wasteful a use of prison resources as California’s Three Strikes law would have – had California actually built all those prisons – provided crime-control benefits to California’s residents that would have more than covered its monetary costs.

Money, however, is not the only thing we should try to economize. We should strive to be economical in imposing suffering. Having fewer prisoners is desirable: not, primarily, because prisons cost money but because prisons are horrible places, imposing misery not only on those confined in them but to the people who care about those prisoners: their families, their friends, and their neighbors.

The notion that deserved suffering somehow “doesn’t count” is a piece of mere hand-waving with no rational basis in terms of benefit-cost analysis; desert may be, morally, a reason to punish, or a limit on punishment, but it can’t be a reason to ignore the fact that punishment hurts. And in the usual case the suffering of the families, friends, and neighbors of prisoners is entirely undeserved.

Policing and community corrections involve a higher ratio of threat to actual punishment than do prisons or jails. That means that non-prison spending should be preferred to prison spending if we can achieve a given crime-control gain for the same additional dollars by spending it on cops and probation officers rather than spending it on further expanding institutional corrections.

Expanding even these less punitive parts of the system has a cost in terms of liberty, and that too should be economized. But we should keep in mind that the living under the threat of crime is also liberty-reducing; “freedom from fear” applies to more than fear of arrest.

By the same token, controlling crime by providing services, where it works, is greatly preferable to controlling crime by threatening or inflicting damage. The positive-feedback nature of the crime problem means that services, though they may compete with criminal-justice operations for budget dollars, are synergistic with criminal-justice operations in the field. Whatever shrinks the baseline level of offending increases the pressure on the remaining offender population from any given criminal-justice effort.

The problem is to find actual, practicable, scalable social programs that actually reduce crime, for amounts of money comparable to the cost of reducing crime using force and the threat of force. Given the extent of social gains from reducing crime, any substantial crime reduction we could bring about just by spending practicable amounts of money will be cheap at the price.

Fourth Amendment Rights in a Storage Unit Obtained Using a Stolen Identity

2009-11-14T19:14:57-00:00

Today the Tenth Circuit handed down a very interesting Fourth Amendment decision, United States v. Johnson, on whether an individual can have a reasonable expectation of privacy in a storage unit rented with a stolen identity.

As I understand the facts of the case, the defendant Johnson asked his girlfriend to rent a storage unit using a fake name where he could store his guns. Johnson and his girlfriend had possession of the driver’s license of a woman named Haroldsen — the license had been stolen in a burglary, perhaps, although not necessarily, by Johnson — and Johnson asked his girlfriend to use Haroldsen’s license to rent the storage unit. (Presumably the idea was that this would make it difficult to connect the stored items with Johnson.) Johnson’s girlfriend went to the storage business posed as Haroldsen, and she paid cash to rent the unit. The police ended up searching the storage unit without a warrant and they found Johnson’s guns. Johnson admitted that he had stored his guns there, leading to charges that Johnson was a felon in possession of the guns.

The question in the case was whether Johnson had Fourth Amendment rights in the storage unit given that the unit had been obtained using Haroldsen’s stolen identity. In an opinion by Judge Ebel, the Tenth Circuit ruled that Johnson did not have Fourth Amendment rights in the unit because Johnson had directed his girlfriend “to enter into the rental agreement using Haroldsen’s stolen identity.” The opinion begins with a rather enjoyable discussion of the nature of the reasonable expectation of privacy test, and it then focuses on the fact that Johnson obtained the rental unit by via unlawful identity theft. The court concludes that this fraud in the obtaining of the unit diminishes the reasonableness of an expectation of privacy in the unit much like occurs with the contents of stolen property, and thus Johnson had no Fourth Amendment rights in the contents of the unit.

This was a really hard case, I think, and the court was right to recognize that there are no clearly correct answers here. Johnson is a subset of a specific kind of Fourth Amendment problem that has long befuddled the lower courts, especially as there is virtually no guidance on the issue from the Supreme Court. The question is, what kind of relationship does a person need over rented or borrowed physical property to establish Fourth Amendment in their contents? Specifically, when the owner of the property rents out the property subject to some limitation that is breached, does that breach eliminate the Fourth Amendment protection in the property?

This issue arises all the time with rental cars, and there is currently a circuit split on it and a pending cert petition that I’ve been following (as well as a recent petition that I helped with that was recently denied). In the car rental cases, A goes to the rental company and rents a car. The contract says that A is the only authorized driver of the car. A nonetheless lets B drive the car, and B is driving the car when the cops stop him and search the car without a warrant or probable cause. The question, then, is whether B has Fourth Amendment rights in the car. Some circuits say no, as he is an unauthorized driver who is driving in violation of the rental agreement. Other circuits say yes, as the legitimate renter gave him permission to drive the car.

The rental car question is hard under existing Fourth Amendment law because the Supreme Court has never answered how breach of rental agreements or other fraud in the obtaining or use of rented property eliminates Fourth Amendment rights. I see today’s decision in Johnson as a close cousin that raises the same basic principle. The Supreme Court will have to deal with these questions eventually, as they come up all the time. But right now the lower courts don’t have clear principles to guide them.

FBI Arrests Two Men for Allegedly Conspiring To Attack Danish Newspaper That Published the Mohammed Cartoons, the Newspaper Editor, and one of the Cartoonists

2009-11-14T19:14:57-00:00

From the Justice Department press release:

Two Chicago men have been arrested on federal charges for their alleged roles in conspiracies to provide material support and/or to commit terrorist acts against overseas targets, including facilities and employees of a Danish newspaper that published cartoons of the Prophet Mohammed in 2005, federal law enforcement officials announced today....

The defendants charged in separate criminal complaints unsealed today in U.S. District Court in Chicago are David Coleman Headley, 49, and Tahawwur Hussain Rana, 48, also known as Tahawar Rana, announced Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, and Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the FBI. The complaints remained under seal temporarily after the defendants’ arrests, with court approval, so as not to compromise further investigative activity.

Headley, a U.S. citizen who changed his name from Daood Gilani in 2006 and resides primarily in Chicago, was arrested on Oct. 3, 2009 .... Rana, a native of Pakistan and citizen of Canada who also primarily resides in Chicago, was arrested on Oct. 18, 2009 ....

According to both complaints, since at least late 2008 until Oct. 3, 2009, as part of the conspiracy to murder and maim persons abroad, Headley allegedly identified and conducted surveillance of potential targets of a terrorist attack in Denmark on two separate trips to Denmark in January and July 2009, and reported and attempted to report on his efforts to other conspirators in Pakistan. As part of the conspiracy to provide material support to terrorism, Rana allegedly helped arrange Headley’s travels overseas and conceal their true nature and purpose to surveil potential terror targets overseas, and discussed potential targets for attack with Headley....

The public is reminded that a criminal complaint contains mere allegations that are not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

Thanks to InstaPundit for the pointer; more also in this Bloomberg story (which mentions that the plot focused on the editor and the cartoonist as well as the newspaper).

More on “[T]he Islamic Fundamentalist Charge That ... the U.S.A. ... Is the ‘Great Satan’ Is Not Without an Element of Truth”

2009-11-14T19:14:57-00:00

I blogged an item earlier today about the Catholic Archdiocese of Agana (Guam) for this paragraph in its criticism of the proposed Guam domestic partnership bill (links are in the original post):

The culture of homosexuality is a culture of self-absorption because it does not value self-sacrifice. It is a glaring example of what John Paul II has called the culture of death. Islamic fundamentalists clearly understand the damage that homosexual behavior inflicts on a culture. That is why they repress such behavior by death. Their culture is anything but one of self-absorption. It may be brutal at times, but any culture that is able to produce wave after wave of suicide bombers (women as well as men) is a culture that at least knows how to value self-sacrifice. Terrorism as a way to oppose the degeneration of the culture is to be rejected completely since such violence is itself another form of degeneracy. One, however, does not have to agree with the gruesome ways that the fundamentalists use to curb the forces that undermine their culture to admit that the Islamic fundamentalist charge that Western Civilization in general and the U.S.A. in particular is the “Great Satan” is not without an element of truth. It makes no sense for the U.S. Government to send our boys to fight Al Qaida and the Taliban in Afghanistan, while at the same time it embraces the social policies embodied in Bill 185 (as President Obama has done). Such policies only furnish further arguments for the fundamentalists in their efforts to gain more recruits for the war against the “Great Satan.” ...

I quoted the paragraph, and then just said “Appalling.”

It turns out that quite a few readers were perplexed by what I found appalling here, and some faulted me for not being more specific. I had thought that the paragraph spoke for itself, but let me just outline a few items:

1. Consider the favorable citation of the death penalty for homosexual behavior. I know Catholicism condemns homosexuality; I disagree with such condemnations, but I’m surely not appalled by reasonable discussions of whether or not homosexuality is immoral and harmful or not. Yet to speak of deliberately killing homosexuals for their homosexuality with anything other than condemnation — now that is appalling.

Yes, I realize that later the paragraph acknowledges that Islamic fundamentalist culture is “brutal at times,” but the statement is “It may be brutal at times, but ....” Yes, I realize that later the paragraph says that “[o]ne, however, does not have to agree with the gruesome ways that the fundamentalists use to curb the forces that undermine their culture,” but that seems to me to refer to the subject of the preceding sentence (terrorism) and not to the death penalty for homosexual behavior (as opposed to just terrorism). And again, it comes in the process of defending that culture’s reaction to homosexuality, and holding it up as something that should at least be considered respectfully.

2. Consider the choice of Islamic fundamentalist culture as the supposed exemplar of “a culture that at least knows how to value self-sacrifice” — coupled with the supposed evidence of such valuing, which is the culture’s “ab[ility] to produce wave after wave of suicide bombers (women as well as men).” That too is appalling.

Aren’t there other cultures that produce plenty of people who can engage in “self-sacrifice” without murdering many other people in the process? Might those cultures not be better ones to look to in making choices for our own culture? Or are those cultures just not anti-homosexual enough for the Archdiocese’s purposes?

And who exactly is the one here who’s supporting a “culture of death”?

3. Consider the suggestion that there is an “element of truth” in the notion that the U.S. is the “great Satan” because it does not sufficiently punish or discriminate against homosexuals and homosexual behavior. Perhaps homosexuality is immoral; perhaps allowing it is unwise; but to suggest that a government’s declining to police people’s consensual sexual lives is even in some measure “great Satan” behavior — that’s appalling.

Plus if tolerating homosexuality makes us Satanic, what about tolerating atheism? What about tolerating religious beliefs that Catholics view as idol worship, and thus as the breaking of one of the Ten Commandments? After all, the self-sacrifice-valuing fundamentalist Islam provides for repressing conversion away from Islam (including to Catholicism) by death. Should we look up to them on that, too?

4. Finally, consider the suggestion that we should decide what rights and privileges our own citizens should have based on what Islamic fundamentalists think — that, too, is appalling.

And it is especially so given just how far we’d have to go in order to make Islamic fundamentalists less troubled by our position on homosexuality. Al-Qaida recruiting, I suspect, isn’t much influenced by domestic partnership laws in Guam, or domestic partnership laws in America generally. Presumably knowing that we have openly gay public figures (even government officials) who are respected rather than imprisoned is a much more significant marker of our gay-friendliness. I take it we’d have to change that, too, if we really make “repress[ing homosexual] behavior” as a means of combating Al-Qaida recruiting into a driving force of our domestic social policy.

* * *

Again, I’m not expecting the Catholic Church to come around to the view that homosexuality is morally permissible. Nor do I find anything appalling in their having a contrary view, arguing for that view, or opposing domestic partnership benefits or marriage benefits for homosexual couples. My sense is that providing same-sex couples the same marriage-related benefits as are offered to opposite-sex couples will be good for society, and is the fair thing to do; but perhaps I’m wrong on this, and in any case, reasonable people should continue discuss these questions.

Yet the Archdiocese of Agana’s statement goes far beyond the bounds of reasonable discussion. All it can do is appall.

Google Wave Invitations and Audience Questions for Podcast

2009-11-14T19:14:57-00:00

I have a few Google Wave invitations that I'd be happy to extend to regular readers of this blog who would like to test out Wave. Send me an email at denniskennedyblog @ gmail.com with your email address and some info about what you'd like to use Google Wave for and I'll see how long they last.

I'll especially look favorably on those who include a question for the audience Q & A segment of our next episode of The Kennedy-Mighell Report podcast. The next episode will cover Windows 7 and Tom and I would welcome your questiions about Windows 7 or any other legal tech topic.

I'm also interested in hearing from people who have found good (and successful) uses for Google Wave.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

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Now Available! The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell. Visit the companion website for the book at LawyersGuidetoCollaboration.com. Twitter: @collabtools

Listen to The Kennedy-Mighell Report podcast on the Legal Talk Network.

Technorati tags: springsteen e street born to run st. louis

Born to Run - The Live Version

2009-11-14T19:14:57-00:00

We went to see the Bruce Springsteen show in St. Louis on Sunday. I planned to blog about it last night, but the story of the cancellation of last night’s Kansas City show because of the death of Springsteen’s cousin and road crew manager had just broken and it seemed best to wait a day.

In addition to extending my sympathies, I did want to note that I specifically noticed the performance of the road crew during the show – they seemed especially professional and attentive. As we waited for the show to start, I noticed the attention to safety as the crew crawled up the ladders into the lights.

As long-time readers of this blog know, I’ve seen Springsteen play live many times and I can fairly be characterized as a big fan. I’m not going to write anything like a review here – just sketch out a few notes and observations, especially for my friends Jim and Dr. Jeff – and note that this show is definitely worth seeing if it comes to your town.

I knew before we went that Springsteen would be playing the entire Born to Run album from beginning to end in order during the show. I also suspected before I went that that performance would be among the highlights of shows remembered as I look back in future years. It will indeed be.

This show features the E Street Band and we got the full E Street Band experience, with a wide-ranging rocking show that featured all of the players from time to time. I’ll also note that you do start to wonder if this will be the last E Street Band tour or, at least, how many more there will be. Danny Federici is gone already. It’s an older group, to be sure, but they have tremendous energy as a band.

Here’s the set list:

Wrecking Ball
Seeds
Prove It All Night
Hungry Heart
Working On A Dream
Thunder Road
Tenth Avenue Freeze-Out
Night
Backstreets
Born To Run
She's The One
Meeting Across The River
Jungleland
Waiting On A Sunny Day
Working On The Highway
The Promised Land
Lonesome Day
The Rising
Badlands
No Surrender

For You
Roll Over Beethoven
Surprise Surprise
Detroit Medley
American Land
Dancing In The Dark
Rosalita

Highlights:

1. Born to Run – The Live Version. Bruce’s intro was simple and to the point. It’s interesting to realize now how much really depended on this album selling. It would have been the third strike if it hadn’t and none of the other records might have come after. Bruce made a reference to that and the fact that it is a young person’s record. As the album unfolded, I was struck by how little it sounds like the rest of the music that came out at the time. Standout moments included a breath-takingly good version of Backstreets, the moment the lights come up on the entire audience in Born to Run, the trumpet work on Across the River, and an elegiac version of Jungleland to end. Bruce brought out the guys in the band who created the record (with a reference to the missing Danny). I’d call it a great gift to long-time fans and one of the great memories I’ll have of his shows.

2. I could have made a zillion predictions for what he might play and never come up with the solo piano version of “For You” he played by request. Quite a rare treat and a compelling performance.

3. Nils Lofgrin’s guitar solo in Prove it All Night – almost other worldly – I’ve never seen/heard anything quite like it. I’m a big fan of Bruce’s solos in Prove it All Night over the years, but this one was a stunner and worthy addition to the history of solos in the song.

4. The sequence of Lonesome Day, The Rising, Badlands and No Surrender, which to me seemed to follow a compelling logic. At the end of each song, I was thinking that I wished he’d play the next song, and he did.

5. Rising Just a great St. Louis moment – playing Roll Over Beethoven, by request, in Chuck Berry’s hometown.

It was almost 3 hours, basically non-stop, and quite enjoyable. As I say, worth checking out if it omes to your town, especially if he will be doing one of the entire album segments. And, Bruce’s dynamic energy at age 60 is an inspiration.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

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Technorati tags: springsteen e street born to run st. louis

Why Aren’t Bad Prosecutors Held Accountable?

2009-11-14T19:14:57-00:00

Radley Balko, whose weekly crime column should be on your reading list, wants to know:

As DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases ... where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Yglesias at JStreet

2009-11-14T19:14:57-00:00

Matthew Yglesias:

I was debating with Jon Chait at a J Street panel this morning on the subject of “what does it mean to be pro-Israel?” As expected, we disagreed on a number of points, most of which I was right on and he was wrong on. But one thing he said in his opening remarks that I really disagreed with was that there was an ambiguity running through the J Street constituency as to whether the group was or should be pro-Israel at all.

That just struck me as kind of nuts. My J Street button said “Pro-Israel, Pro-Peace.” It’s not a subtle aspect of the messaging. But when we moved to the Q&A time it became clear that a number of people in the audience really were quite uncomfortable self-defining as “pro-Israel” in any sense and that others are uncomfortable with the basic Zionist concept of a Jewish national state. I was, of course, aware that those views existed but it had seemed to me that it was clear that that wasn’t what J Street is there to advocate for. Apparently, though, it wasn’t clear to everyone.

Two comments:

(1) As I noted Saturday, JStreet is going to have to make it really clear that it is fact a “pro-Israel” organization, albeit a “progressive” and pro-peace one, if it is to gain any ultimate traction in the Jewish community. And that means making anti-Israel people like those Yglesias describes unwelcome. Meanwhile, it doesn’t help matters that the secretary of JStreet’s student division, Lauren Barr, announced that the division is dropping “pro-Israel” from the “pro-Israel, pro-peace” slogan of the broader group, so as not to make people uncomfortable. Memo to Ms. Barr: The job of a pro-Israel group is to make people who aren’t pro-Israel feel uncomfortable. Hopefully, you can get them to rethink their position, but, to the extent that they are against Israel, they are a pro-Israel group’s adversaries.

(2) I get the sense that Yglesias is surprised that there are actually otherwise seemingly well-meaning progressive people out there who not only seriously object to the very idea of a Jewish national state (but not other national states, including the many others that have an ethnic basis), but that they would pay good money to come to what was billed as a pro-peace and pro-Israel conference.

I surmise that we have a disconnect here. The anti-Israel progressives believe that no right-minded progressive could possibly be truly pro-Israel, so that as a progressive group JStreet would inevitably welcome them (and JStreet has sent out enough ambiguous signals to make this plausible).

Youngish Jewish Progressives like Yglesias, on the other hand, haven’t taken the real anti-Israel sentiment out there on the left to heart; they assume that eliminationist and otherwise vituperative rhetoric against Israel that, for example, shows up in their blog comments sections, is somehow lingering hostility to the Bush Administration’s Mideast policies, or perhaps hostility to Israel’s “right-wing” government, or anger at Israel’s military actions in Lebanon and Gaza, or opposition to the “Occupation.” Yglesias, et al., have a hard time grasping that fellow “progressives “could really be (a) so naive as to think that a “one-state solution” would work in Israel/Palestine, when, as Yglesias says, it’s not clear it will work in the long-term in Belgium or Canada; and/or (b) so unreasoningly hostile to Zionism as to somehow think that it’s okay for everyone else in the world to have a state, regardless of whatever historical injustices that state was guilty of, but that the Jewish people’s state, despite being clearly more “liberal” than all of its neighbors, is somehow uniquely awful such that it must not exist even if it otherwise pursued suitably “progressive” policies.

I perfectly understand the difficulty that one could have with these ideas, because when in my twenties, I remember arguing with members of the older generation that they were too paranoid about anti-Semitism, that Israel needs to be much more flexible to achieve a peace accord, and that the murderous rhetoric about Israel emanating from the Arab world and elsewhere would go away once the parties all recognized their rational self-interest and came to a peace deal. It took many years, and, among other things, an intifada that involved a remarkable number of “progressive” Western intellectuals apologizing for, or even justifying, blowing up kids in pizza parlors in response to a serious peace offer from Israel, and a series of modern-day blood libels in Europe during Operation Defensive Shield in 2002 to realize that I had been extremely naive. It’s not that I’ve given up hope; but I learned to take what seemed to a younger me like pure craziness that couldn’t possibly be serious–such as the continuing popularity of the Protocols of the Elders of Zion in the Muslim world–very seriously.

Who is behind today’s anti-banker demonstrations? The usual suspects

2009-11-14T19:14:57-00:00

(photo from stopbankgreed.org)

During Tuesday’s lunch program at CNBC, anchor Bill Griffith asked who was behind the demonstrations at the American Bankers Association meetings in Chicago. The answer is clear: SEIU and a coalition of organizations, many of which are related with ACORN or that have commonly partnered with ACORN over the years.

A few weeks ago, I was solicited to participate in today’s demonstration by a robocall. (My guess is that I was selected because I am a registered Democrat –- perhaps also because I live in a zip code with a large African-American population and a history of ACORN-related organizing.)

Given the option of endorsing the effort or learning more, I chose learning more. The robocall then revealed that I was being solicited by the SEIU Illinois Council.

The phone call then directed me to a website run by a coalition that included several organizations related to ACORN or run by former ACORN officials. (In Illinois, for example, ACORN mostly shut down in 2008, with many of its members moving over to Action Now.) The head of SEIU Illinois Council (the group that took credit for my robocall) is Tom Balanoff, the labor leader who was so close to Obama that he was chosen as Blagojevich’s go-between in Blagojevich’s effort to shake down the Obama team. One of the improper proposals that Blagojevich floated was a job at Change to Win, another of the organizations that is sponsoring today’s demonstrations against bankers. Another sponsor is Citizen Action, the organization that received a large, suspicious payment from the Obama campaign.

A week after the phone call, I received a letter in the mail that began:

Dear Voter:

Thank you for agreeing to join the thousands of people from around the country to tell the American Bankers Association—Enough is Enough!

Note that I did NOT agree to join and I did NOT give SEIU my address, but they probably got it from the voters list. (Given how they misrecorded my preferences, I hope that SEIU is not one of the groups that the Census has hired to record information on people for the 2010 Census.)

So who is behind today’s anti-banker demonstrations? It’s the usual suspects: primarily SEIU, other ACORN affiliated organizations, and groups that traditionally partnered with ACORN in its campaigns against banks.

Yet because of the closeness of the usual suspects to the Obama campaign and the Obama Administration, the more interesting question is: Did the White House put SEIU and other ACORN-related groups up to this? Given that ACORN and its partners have been demonstrating against banks for over a decade, I think that the answer is very probably “No.”

More at Malkin.

minilinks for 2009-10-27

2009-11-14T19:14:57-00:00

CIA Invests In Social Network Monitoring
Watch what you tweet! Intelligence agencies are investing in new tech to monitor and archive public activity on blogs and social networks.
NYT Op-Ed: A Win For Free Speech
The Times Editorial Board on why the Craigslist win in federal court matters.
UK's MI5 Opposes 3 Strikes
British intelligence is against cutting off internet access for accused pirates -- because might encourage people to use crypto.
Resisting Corporate Bullying On the Net
EFF Fellow Cory Doctorow on how and why to stand up to bogus DMCA takedowns and other forms of censorship.
The French Disconnection
France's Conseil Constitutionnel has ruled Internet disconnection law is now legal.
Fair Use: What It Means, Why It Matters
In the wake of Shepard Fairey's admission of lying in his fair use case, Tim Wu explains why fair use is important.
Study: Can't Stop Filesharing
A new study finds that the millions spent by the RIAA and MPAA to stop BitTorrent pirats has had no noticeable effect.
Canadian DMCA? That's Funny
CBC's "This Hour Has 22 Minutes" has a funny sketch on proposed Canadian copyright law reform.

Paul Caron on Drivers of Law School Cost from GAO Report

2009-11-14T19:14:57-00:00

Paul Caron, at TaxProf, has posted some executive summary parts and the link to a GAO report on drivers of law school cost as well as minority enrollment. Regarding costs of legal education, the GAO summary says:

According to law school officials, the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school, while ABA accreditation requirements appear to play a minor role. Additionally, officials at public law schools reported that recent decreases in state funding are a contributor to rising tuition at public schools.

Very interesting post over at TaxProfBlog — the screen shots include a number of powerpoint charts and graphs from the GAO report. I agree with the GAO report and its surveyed law school officials that accreditation plays very little role in driving up law school costs, and that rankings are an important driver. They are also an important driver in things schools spend money on that drive up costs, such as faculty student ratios, for example.

I also believe, however — but wouldn’t try to defend here — that law schools respond to the availability of federal dollars and capture that money from students, and that law school tuition rates reflect perceptions of the return on investment available to students in going to work for law firms. At least in my discussions with fellow professors who have some idea about law school economics, the thought is that mid tier schools found that they could place more of their students into large law firms, not necessarily the very top firms, but large workhorse firms that paid well.

And in my discussions with professors, the concerns are two-fold. First, that if the big law model is genuinely collapsing into the long term, then the returns on law school investment might well be declining to ... what, exactly? Well, for those of us here in Washington DC, it might be to something closer to what government lawyers earn. Not to be sneezed at, heaven knows, particularly if you factor in the security and benefits, but not necessarily the returns long term that can support the rate of tuition increases at even mid tier schools like my own.

Second, if the USG becomes the lender directly, the pressure on it to intervene in the tuition “market” (I use that term very loosely indeed) and impose some cost controls is strong. That could well be characterized, and might actually be, a regulatory mechanism for ensuring that subsidies aimed at students don’t wind up in the hands of a law school oligopoly. Or not. At least, that’s the substance of conversations I have with friends at a variety of schools in roughly my school’s tier.

Given the fascination of law professors with all things having to do with the ranking and dissection of the law school world, is it possible that someone has already done a genuine empirical study of the cost structures of law schools and their implied or explicit business models?

As a side note, I certainly find that I think harder than I used to about whether I am providing value to students, and I think of it as dollar value and return on long term investment. I treat myself a lot more as an educational fiduciary than I used to. I’m not alone in that, I suspect — I had a fascinating dinner conversation with a friend who teaches comp lit at a top five university; he told me that he thinks all the time about what he is going to convey and what it should mean, particularly as it is not professional education — it is inherently long term and about learning to think, reason, interpret, and write effectively, and in the context of the humanities and values. He has a son about to enter college and it is on his mind same as it is on mine. Yet it’s easier, really, for me to answer that teaching in a professional school — I don’t mean that the humanities, literature, etc., are not important, far from it, but that it’s an easier pedagogical question in a law school or medical school than in a literature department.

That means, from my point of view, thinking about law student education and what I think they need that they are not professionally able to determine for themselves. I’m not an agent for a principal, I’m a fiduciary for an only partly competent principal. My best advice, I suppose, is that you need a mix of plumbing classes and grad school classes; classes that teach you about the nuts and bolts, but also classes that teach you to think creatively and amply, because the field is not static, at least not in American law. It might mean law and economics, to learn to think in a forward manner about incentives, for some students; and to learn to write and interpret difficult texts for others; and still something else for others.

Students, on the other hand, tend to think they know more than they do about what they need from law school, and at the extreme end, tend to think of themselves as the purchasers of a very expensive commodity called legal education, and I am the guy on the other side of the Starbuck’s counter purveying it to them. Wants and needs. There was a song about that, right?

Law school on the "Block Plan"

2009-11-14T19:14:57-00:00

For no particular reason, I was thinking today about the "Block Plan" (or "One-Course-at-a-Time") approach used at liberal arts colleges such as Colorado College and Cornell (IA) College. As the name suggests, students take (and professors teach) one class in an intensive 3 1/2- or 4-week block, take one week off, then move on to another single class. And at least Cornell plays up internship and other outside-the-classroom opportunities. So: Any thoughts on whether law school could work on this model?

“[T]he Islamic Fundamentalist Charge That ... the U.S.A. ... Is the ‘Great Satan’ Is Not Without an Element of Truth”

2009-11-14T19:14:57-00:00

Guess who takes that view? The answer lies in this document put out by the Catholic Archdiocese of Agana (Guam), criticizing the proposed Guam domestic partnership bill:

The culture of homosexuality is a culture of self-absorption because it does not value self-sacrifice. It is a glaring example of what John Paul II has called the culture of death. Islamic fundamentalists clearly understand the damage that homosexual behavior inflicts on a culture. That is why they repress such behavior by death. T heir cultural is anything but one of self-absorption. It may be brutal at times, but any culture that is able to produce wave after wave of suicide bombers (women as well as men) is a culture that at least knows how to value self-sacrifice. Terrorism as a way to oppose the degeneration of the culture is to be rejected completely since such violence is itself another form of degeneracy. One, however, does not have to agree with the gruesome ways that the fundamentalists use to curb the forces that undermine their culture to admit that the Islamic fundamentalist charge that Western Civilization in general and the U.S.A. in particular is the “Great Satan” is not without an element of truth. It makes no sense for the U.S. Government to send our boys to fight Al Qaida and the Taliban in Afghanistan, while at the same time it embraces the social policies embodied in Bill 185 (as President Obama has done). Such policies only furnish further arguments for the fundamentalists in their efforts to gain more recruits for the war against the “Great Satan.” ...

Appalling.

Scientology Faces Judgment in France...

2009-11-14T19:14:57-00:00

Here's a quote from an article in today's NY Times: The French branch of the Church of Scientology was convicted of fraud and fined nearly $900,000 on Tuesday by a Paris court. But the judges did not ban the church entirely, as the prosecution had demanded, saying that a change in the law prevented such an action for fraud . . . The case was brought by two former members who said they were pushed into paying large sums of money in the 1990s, pressed to sign up for expensive “purification courses” and harassed to buy a variety of vitamins...

Legal Scholarship in the Internet Age

2009-11-14T19:14:57-00:00

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic. I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship. For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutrary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French. After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French. In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above. One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago. By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

Slowing Down RCEs and Lengthening the Patent Term

2009-11-14T19:14:57-00:00

In a prior post, I discussed the USPTO's planned docket-change for applications associated with a request for continued examination (RCE). See Nudging Against RCE Filings. According to the RCE Docket proposal, when an applicant files an RCE, the pending application will be taken off the examiner's in-prosecution docket and placed in the "special-new" queue that is primarily filled with continuation applications. This new approach will result in RCE's being handled much more slowly.

The graph below is a rough-cut attempt to compare the "special-new" queue with the RCE queue. The data comes from a set of eight thousand randomly selected patent applications filed 2001-2006 whose file histories have been made public on PAIR. The graph shows three groupings or application scenarios and the average delay from applicant filing to the receipt of a first office action for each. In my sample of continuation applications, the average PTO delay in mailing a first office action was a bit over six hundred days. On the other hand, after receiving an RCE, the average PTO delay in issuing an office action was less than three months.

The proposed change docket-change would essentially take the RCE group and combine it with the continuation group – likely adding over 18-months delay to RCE processing. As Scott Kamholz suggested, this will likely lead to a patent term adjustment (PTA) "bonanza." This may become a favored approach for applicants looking to extend their patent term. Submarine anyone?

Because of the large sample size, the differences in delay between the groupings are all significant (P<.01). However, there are a number of potential confounding factors – perhaps most notably is a selection bias associated areas of technology. I did not correct for those potential problems in this rough-cut.

UPDATE: The following comment comes from a PTO Insider:

The difference here is the initial docketing to examiners. An RCE will cause the application to be automatically redocketed to an examiner's Special New tab immediately once the LIE processes the RCE. Continuations, on the other hand, are not automatically docketed to examiners in this fashion, hence the pendency on the same order as normal non-continuation filings. Most of this time (after pre-exam) is spent on a SPE docket or no docket at all, awaiting eventual docketing to an examiner, just like normal non-continuation apps. While it's likely that RCEs on the Special New docket will increase the time to next action for those cases, it won't be anything even remotely comparable to 600+ days.

Illegal to “Vilify” Religion (in a European Union Member, No Less)

2009-11-14T19:14:57-00:00

Malta Criminal Code §§ 163–164 provides that,

163. Whosoever by words, gestures, written matter, whether printed or not, or pictures or by some other visible means, publicly vilifies the Roman Catholic Apostolic Religion which is the religion of Malta, or gives offence to the Roman Catholic Apostolic Religion by vilifying those who profess such religion or its ministers, or anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship, shall, on conviction, be liable to imprisonment for a term from one to six months.

164. Whosoever commits any of the acts referred to in the last preceding article against any cult tolerated by law, shall, on conviction, be liable to imprisonment for a term from one to three months.

The Malta Court of Criminal Appeal just interpreted this, and concluded,

The mere fact of dressing up as nun, even if for carnival, but without wearing any religious symbol, cannot reasonably be considered as amounting to public vilification of the Roman Catholic Religion, or of those belonging to such religion, or of its ministers, or of anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship. However, if the wearing of such a habit were accompanied with such circumstances of fact, words or gestures which objectively amount to vilification, then there would be an offence in terms of article 163. Cross reference: The Police v. Rokku Abdilla et Criminal Court 13/01/1962.

So the ban on religion-vilifying speech remains, and the Maltese courts appear to be willing to enforce it. Thanks to Religion Clause for the pointer.

Should Lawyers Check Their Blackberries hourly?

2009-11-14T19:14:57-00:00

In our fast-paced world, it seems like such availability is expected. Certainly, a partner at a BigLaw firm apparently thinks associates should, sorta. You can read about it on ABA Journal’s Law News Now and Above the Law. In a nutshell, a partner asked an associate to send a fax to a client before the latter left the office, but junior forgot to check his emails and never got the word.

My question to that partner is, “have you ever heard of the telephone?” If it was that important, why didn’t you pick up the damn phone and make sure it got done. Also, I don’t know about this guy, but I know I have failed to receive emails sent (or received them hours later – really) and others have not gotten some that I’ve sent.

But the issue is, do we really have to live our lives by the Blackberry or iPhone? Although in an earlier post I endorsed Dan Hull’s 12 Rules of client service, including “Be there for clients - 24/7,” I’m having second thoughts on the 24/7 part. Maybe it’s just because I’m getting tired of technology running my life.

Here's a couple of options (at least when it comes to clients):

Set a time that you will read and respond to emails (maybe that research project shouldn’t be interrupted willy-nilly); and
Tell clients that you will be checking and responding to emails at certain times during the day, but they should not hesitate to call if something is urgent.

Associates in BigLaw, you're on your own when it comes to firm emails.

There! I feel better, but I have to go. It’s approaching the hour, and I need to check my Blackberry.

'Hall of Shame' Calls Out Bogus Internet Censorship

2009-11-14T19:14:57-00:00

San Francisco - Websites like YouTube have ushered in a new era of creativity and free speech on the Internet, but not everyone is celebrating. Some of the web's most interesting content has been yanked from popular websites with bogus copyright claims or other spurious legal threats. So today the Electronic Frontier Foundation (EFF) is launching its "Takedown Hall of Shame" to call attention to particularly bogus takedowns — and showcase the amazing online videos and other creative works that someone doesn't want you to see.

"Free speech in the 21st century often depends on incorporating video clips and other content from various sources," explained EFF Senior Staff Attorney and Kahle Promise Fellow Corynne McSherry. "It's what The Daily Show with Jon Stewart does every night. This is 'fair use' of copyrighted or trademarked material and protected under U.S. law. But that hasn't stopped thin-skinned corporations and others from abusing the legal system to get these new works removed from the Internet. We wanted to document this censorship for all to see."

EFF's Takedown Hall of Shame at www.eff.org/takedowns focuses on the most egregious examples of takedown abuse, including an example of a YouTube video National Public Radio tried to remove just this week that criticizes same-sex marriage. Other Hall of Shame honorees include NBC for requesting removal of an Obama campaign video and CBS for targeting a McCain campaign video in the critical months before the 2008 election. The Hall of Shame will be updated regularly, as bad takedowns continue to squash free speech rights of artists, critics, and commentators big and small.

Many of the bogus takedowns come from misuse of the Digital Millennium Copyright Act (DMCA). Under the DMCA, claimants can demand that material be removed immediately without providing any proof of infringement. Service providers, fearful of monetary damages and legal hassles, often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

"The DMCA encourages a 'take down first, ask questions later' approach, creating an unfair hurdle to free speech," said EFF Activist Richard Esguerra. "People who abuse this law to silence critics should be shamed publicly, and that's what we're aiming to do."

The Takedown Hall of Shame is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless intellectual property claims.

For EFF's Takedown Hall of Shame:
http://www.eff.org/takedowns

For EFF's No Downtime for Free Speech Campaign:
http://www.eff.org/issues/ip-and-free-speech

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Richard Esguerra
Activist
Electronic Frontier Foundation
richard@eff.org

Masterpieces of the Universe

2009-11-14T19:14:57-00:00

In my Art Law class, we cover a variety of issues related to fine art, including ownership and public access. Museums are the largest holders of collections that are accessible to the public, and they are publicly funded. Many also consider some of our largest banks to now fall into that category. Since many bailed-out banks own precious works of art, does the public have the right to see them? The New York Times outlines the issue in great detail. If they don’t display the works, should the public have a say in how they are stored? Are we partial...

Good News: You’re Making Less Money

2009-11-14T19:14:57-00:00

The Legal Intelligencer reports on a survey of law firm partner compensation among men and women, and I was struck by this line:

Some good news out of the survey was that the gap in compensation between male and female partners shrunk in 2009. But the report also pointed out that the smaller gap is likely an overall effect of reduced compensation at the equity level generally. Between 2008 and 2009, the median pay fell for all positions regardless of gender and was sharpest for equity partners. Pay for the equity partner category in 2009 fell below 87 percent of the median compensation in 2008.

I suppose it would be even better news if everyone were fired, thus entirely eliminating the gap in compensation between male and female lawyers.

typetext

2009-11-14T19:14:57-00:00

October 1995 - And The Child Witness

Q. And lastly, Gary, all of your responses must be oral, okay? What school do you go to?

A. Oral.

Q. And where do you live?

A. Oral.

Reply to Henry Farrell, Part II

2009-11-14T19:14:57-00:00

I mentioned before Henry’s defense of the laws of war. Here is the relevant passage.

There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. … Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.

I expressed some doubts about this logic in my earlier post. Here I want to point out another problem with this attitude, at least if one takes seriously its logic. Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue). It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution. The Human Rights Council is dominated by illiberal states that cannot agree to condemn North Korea or Iran or Sudan, but can agree to condemn Israel. When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states. If you go to their website, and read their reports, you will notice that when votes occur (as they do for controversial issues but not the bland periodic reviews), there is a distinctive pattern, something like this:

The voting was as follows:

In favor: Angola, Argentina, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia;

Against: Belgium, Bosnia and Herzegovina, France, Hungary, Italy, Japan, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America.

Hm, what should we make of this? Here we see the Americans in the same bloc as the virtuous Europeans. (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.) Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war. But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs? Why should they, exactly? If they value human rights and the laws of war, they can comply with them. If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse.

International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.

McDonald’s Out of Iceland

2009-11-14T19:14:57-00:00

Just when you thought the global financial crisis was subsiding, with returns to growth in most leading economies, including the US, Europe, China, etc., we have a counter-indicator. The Financial Times reports today that McDonald’s is closing its three outlets in Iceland, citing the difficult economic environment:

Iceland edged further towards the margins of the global economy on Monday whenMcDonald’s announced the closure of its three restaurants in the crisis-hit country and said that it had no plans to return.

The move will see Iceland, one of the world’s wealthiest nations per capita until the collapse of its banking sector last year, join Albania, Armenia and Bosnia and Herzegovina in a small band of European countries without a McDonald’s.

The FT gives some background on why the environment for selling Big Macs in Iceland is so difficult:

McDonald’s blamed the closures on the “very challenging economic climate” and the “unique operational complexity” of doing business in an island nation of just 300,000 people on the edge of the Arctic Circle. Most ingredients used by McDonald’s in Iceland are imported from Germany – leading to a doubling in costs as the krona has collapsed while the euro has strengthened.

The FT cites the Big Mac index, a purchasing power parity index for comparing the valuations of currencies based on the comparative price of a single, uniform basket of goods, in this case a Big Mac, drink, and fries (as I recall). The Economist dreamed it up as whimsy many years ago, but it has proved oddly robust at least for certain comparisons:

Magnus Ogmundsson, managing director of Lyst, the McDonald’s franchise holder in Iceland, said that price rises of at least 20 per cent were needed to produce an acceptable profit. That would have pushed the price of a Big Mac burger well above the $5.75 it costs to buy one in Switzerland, home to the world’s most expensive McDonald’s, according to the Big Mac index.

Luckily, the local franchise owner is taking over the stores and plans to retool the menu using locally produced meat and ingredients, and rebranding under the eco-cool concept of local food production.

Another MSM Mention

2009-11-14T19:14:56-00:00

We get a mention in today's 'Times' in the Times 2 section.

One or two posters on the MA's private forum became a little cross (and in some cases rather pompous) at my picking up the early-release story there, but the Governor concerned was speaking openly and I feel no shame whatever at having brought an important issue into the public arena.

Courts are open to the public, and the workings of the justice system should to be too.

Blawg of the Day - New Jersey Law for Special Needs Children

2009-11-14T19:14:57-00:00

The New York/New Jersey firm of Cole Schotz have attorneys working in the area of special needs planning, including preparing trusts for assets owned by special needs children, including preparing trusts for assets owned by a special needs child and preparing trusts to be the recipient of assets to be dedicated, by gift or inheritance, to a disabled or incapacitated individual. They started publishing the blog New Jersey Law for Special Needs Children to provide families with information to help them protect and provide for their special needs children now and in the future.

Will The Liberals Play The Role of Opposition on Lawful Access?

2009-11-14T19:14:57-00:00

While the Liberal party indicated late in the summer that it would more actively oppose the Conservative government, apparently that may not apply to Bill C-46 and C-47, the lawful access legislation. Bill C-46, titled the Investigative Powers for the 21st Century Act, received second reading in the House of Commons yesterday with a referral to committee on the way. The bill contains new tracking warrants for the Internet and other police powers.

The first response from the Liberals to this lawful access bill: What took you so long? MP Mark Holland opened with the following question:

Since the bill was essentially introduced by a Liberal government in 2005 and has been reintroduced every session since by the member for Notre-Dame-de-Grˆce-Lachine as a private member's bill, why did the government take so very long to introduce it? It is not as though the police have not been calling for this for years. Second, if the Conservatives finally understood that technology had changed and that the bill we tabled four years ago needed to be implemented, why on earth would they have introduced the bill at the end of the last session in the last week before the summer, not giving us the opportunity until today to actually vote on it? Why were they dragging their feet? Why were they delaying bringing in this legislation for which we have been calling for so long?

In contrast, both the Bloc and NDP supported moving the bill to committee, but expressed the need for careful study to ensure that it strikes a balance between privacy and security. The Bloc noted that "we must also ensure that we do no more than is necessary. We have to strike a balance." The NDP also expressed support for the bill but with some specific reservations. It will be interesting to see the reaction to C-47, which raises significant concerns regarding mandatory disclosure of customer name and address information and ISP surveillance requirements.

District Court Suppresses Contents of E-Mail Account in Bear Stearns Trial

2009-11-14T19:14:57-00:00

The New York Times Deals blog reports on a fascinating new computer search and seizure decision, and one that I think was very likely wrongly decided:

  Federal prosecutors hit another setback on Monday in their criminal fraud case against two former Bear Stearns hedge fund managers, Ralph Cioffi and Matthew Tannin, after the trial judge in Brooklyn prevented jurors from seeing an e-mail in which Mr. Tannin writes, “We could blow up.”
  The e-mail, which was sent from Mr. Tannin’s personal Gmail account, was written in November 2006, months before the two hedge funds that he and Mr. Cioffi oversaw collapsed amid the subprime mortgage crisis. “I became very worried very quickly,” Mr. Tannin wrote in his e-mail. “Credit is only deteriorating. I was worried that this would all end badly and that I would have to look for work.”
  Federal prosecutors in the Eastern District of New York had planned to use the e-mail to show Mr. Tannin was privately expressing doubt about the funds’ performance, but was telling his investors another story.

The opinion, United States v. Cioffi, holds that the warrant was unconstitutionally overbroad and that neither the good faith exception nor inevitable discovery exception applied so that the evidence should be suppressed. My own view is that the overbreadth holding is likely right but that the good faith analysis is wrong, and that as a result the decision to suppress the evidence was incorrect.

First, the facts. The government suspected that a personal G-Mail account contained evidence of a massive fraud scheme. The affidavit fully explained the reasons for that belief in the affidavit, and asked for permission to get the warrants that related to the fraud offense. The actual warrant itself was phrased in broader language, however: It gave the agents permission to obtain “all e-mail” in the G-Mail account “up through August 12, 2007,” a date that the suspect hired an attorney (the limitation being imposed to avoid potentially obtaining attorney-client communications). The agents sent the warrant to Google, and Google responded with a CD-ROM containing the e-mails. The government then looked through the e-mails and quickly found an incriminating e-mail the suspect had sent to himself in which he seems to have detailed his own fraud activities as sort of a diary entry.

Judge Block held that the e-mail could not be admitted under the Fourth Amendment. The government conceded that the e-mails were protected by the Fourth Amendment, and applying that standard the warrant violated the particularity requirement by asking for “all e-mails” in the time window rather than just the e-mails involving fraud. While the affidavit did limit the case to e-mails looking for fraud, and the agents only looked for fraud (and certainly the e-mail in question was such a fraud e-mail), the warrant itself was not particular enough because the warrant itself did not contain the limitation and it was not fully and adequately incorporated into the affidavit. Further, the good faith exception did not apply because the agents should have known that the warrant was insufficient.

I have mixed views of the court’s opinion, but I think the ultimate decision to suppress is incorrect. I think the basic holding that the Fourth Amendment requires agents to give some guidance as to which e-mails it wants rather than to seize the entire account is probably correct. The caselaw is very sparse here, but courts have required the government to be more specific in the case of seizing a computer hard drive. When the government gets a warrant to search for and seize digital evidence at home, the government can’t get a warrant for “all computers,” but rather must ask for “all computers that contain child pornography” or “all records of a conspiracy to commit wire fraud stored in a computer.” See, e.g., United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (McConnell, J.). E-mail accounts today are big enough that the same rule should probably apply to individual e-mail accounts that applies to individual computers: There must be some guidance, even if only very general guidance, as to what the agents are to look for when they have the CD-ROM and start to look through it. A date restriction helps but probably isn’t enough, assuming that there are lots of e-mails before that date. So, assuming that the affidavit wasn’t sufficiently incorporated — a question I’ll leave to the side because the standards among the circuits tends to vary, and it’s a very technical issue — I think the basic Fourth Amendment holding was likely right.

On the other hand, I think the good faith exception should apply, and Judge Block was therefore wrong to suppress the evidence. The question is whether the constitutional error was so clear that a reasonable agent would realize the warrant violated the Fourth Amendment. I don’t think that standard is satisfied for two primary reasons:

First, no district court in the Circuit or the Second Circuit itself has ever held that e-mail is protected by the Fourth Amendment, and the federal Stored Communications Act, 18 U.S.C. 2703(b), takes the position that no warrant is required to obtain e-mails, such as the ones here, that are older than 180 days. As regular readers may know, I argue in a forthcoming article that such e-mail should be protected by a warrant requirement. And it so happens in this case that the government conceded in this case that e-mail is protected by a warrant requirement (presumably because they obatined a warrant — no need to fight that battle in this case). But I don’t think a reasonable police officer would necessarily know that a valid warrant was required and that the relevant federal statute governing e-mail is unconstitutional.

Indeed, there is a remarkable irony in the court’s ruling. If the government had just subpoenaed all the e-mails and not obtained a warrant, as 18 U.S.C. 2703(b) permits, the good faith exception would have applied because the agents could have reasonably claimed good faith reliance on the statute. See, e.g., United States v. Ferguson, 508 F. Supp. 2d 7 (D.D.C. 2007) (accepting such an argument). The agents apparently decided to be more cautious and to get a warrant anyway, even though the federal statute does not require it. But Judge Block ends up punishing the government for providing more process rather than relying on the statute: He ruled that the agents can’t rely on the good faith exception because they obtained a warrant but didn’t meet the far more strict particularity requirements of warrants. That’s an odd result.

The second reason I think the good faith exception applies is that the court’s ruling is directly contrary to the most relevant precedent, United States v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996), the only other decision that comes to mind on the particularity for e-mail accounts. Lamb was an early child pornography case involving a single warrant to obtain the entire contents of 78 AOL e-mail accounts. District Judge Munson held that the one warrant for the entire contents of 78 accounts was constitutional, even though the warrant asked for all e-mail and did not specify only e-mails that involved child pornography crimes:

[The warrant] seeks “all stored files in original format in individual files” and any printouts of the same. There was probable cause to believe that some of those files were image files containing the forbidden depictions. Although the language does not limit investigators to seizing image files only or image files of child pornography only, the actual content of a computer file usually cannot be determined until it is opened with the appropriate application software on a computer. The agents who were tasked to obtain account records related to seventy-eight individuals were not obligated to identify the contents of computer files on AOL’s premises. Because there was probable cause to believe that stored files in the accounts of the suspects contained evidence of the crime, viz. the depictions of child pornography themselves, the warrant properly authorized the search and seizure of these particular items.

Id. at 458–59. In a footnote, Judge Munson added: “it is unreasonable to require the executing officers to identify which files actually contain child pornography and which do not in AOL’s Virginia headquarters. That task may be more properly performed by a government computer technician at an FBI lab or office.” Id. at 458 n.10.

I tend to think Lamb is wrongly decided, or at least outdated given the incredible storage capacity of today’s G-Mail accounts as compared to 1996 America Online accounts. But it’s the only precedent I know of on particularity for e-mail accounts, and it said that a single warrant for the contents of 78 accounts with no date restrictions at all complies with the Constitution. Given Lamb, I think an officer in 2009 could reasonably believe that the warrant in this case was constitutional and that the good faith exception applies.

TTAB Chief Judge J. David Sams to Step Down November 1st

2009-11-14T19:14:57-00:00

After 34 years with the U.S. Patent and Trademark Office, including 28 years at the TTAB, Chief Judge J. David Sams will retire on November 1, 2009. Judge Sams joined the PTO as a trademark examining attorney in 1975. From 1979 to 1981, he served as chief legal assistant to the Assistant Commissioner for Trademarks. He was appointed to the Trademark Trial and Appeal Board in 1981 and was named its Chairman in 1986. His title was changed to Chief Administrative Trademark Judge in 1993.

In addition to his management responsibilities, Judge Sams has participated in a number of important TTAB rulings during his tenure as Chief Judge, including the O.J. Simpson standing case (Ritchie v. Simpson); the Board's first dilution ruling (Toro v. Torohead); the FIDO LAY case (Recot v. M.C. Becton); and the "Redskins" disparagement case (Harjo v. Pro-Football, Inc.).

When asked for comments about Chief Judge Sams, one TTAB Judge who has worked with David for thirty years called him a respected boss, able colleague, loyal friend, and consummate professional.
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Links for 2009-10-26 [del.icio.us]

2009-11-14T19:14:57-00:00

Lifehacker's Complete Guide to Windows 7 - Windows - Lifehacker

ICANN Contract Compliance Statistics

2009-11-14T19:14:57-00:00

Source: ICANN contract compliance team (which enforces the accrediation contact between a registrar and ICANN):

For January to October 2009:

9 terminations of registrars
7 (contested) non-renewals of registrars
184 breach notices transmitted
4,290 enforcement actions
9,304 consumer complaints processed

Study Finds Canadian C-61 Anti-Circumvention Provisions Unconstitutional

2009-11-14T19:14:57-00:00

A new academic article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, concludes that the anti-circumvention provisions found in Bill C-61 were unconstitutional. The authors argue that the DRM provisions were "a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny."

CRTC Posts Updated Stats on Do-Not-Call

2009-11-14T19:14:57-00:00

The CRTC has posted updated data on the experience with do-not-call. It reports that as of September 30, 2009, there have been over 7.6 million registrations and 200,000 complaints. The CRTC has 87 active investigations, issued 145 warning letters, 10 notices of violations, and imposed 7 administrative monetary penalties.

Legislative Summary of Bill C-47

2009-11-14T19:14:57-00:00

The Library of Parliament has posted a legislative summary of Bill C-47, half of the lawful access proposal.

Does a Reference's Priority Claim to a Provisional Application Alter its 102(e) Prior Art Date?

2009-11-14T19:14:57-00:00

In re Giacomini (Fed. Cir. 2009) (discussion of the briefs)

Giacomini is appealing the BPAI's 102(e) rejection -- arguing that the patent asserted as prior art does not actually qualify as prior art. Giacomini's application claims priority back to November 2000. The asserted prior art patent issued in 2006, but was filed in December 2000. The prior art patent also claims priority to a provisional application filed in September 2000. The PTO claims that the 102(e) date of the patent is the filing date of the provisional -- thus making it prior art over Giacomini.

When a patent is asserted under 102(e)(2), the patent's filing date is considered the priority date. In the language of the statute, the PTO must consider whether the putative prior art patent was "granted on an application for patent ... filed in the United States before the invention by the applicant for patent." The provision makes clear that a patent claiming priority to an international application will be given the international application filing date if that application "designated the United states and was published . .. in the English Language." Under US case law, when being considered as prior art, divisional and continuation patents are also given the filing dates of their parents as their 102(e) date. See In re Klesper (CCPA 1968)("provided the disclosure was contained in substance in the earliest application"). However, patents claiming priority to a foreign filing under Section 119 are not given the foreign priority date.

The novel question here on appeal is how to interpreted the statute's silence regarding provisional applications.

Appeal Brief: cafc_appeal_brief_2009-1400_500-002us-2.pdf
cafc_appeal_brief_2009-1400_500-002us-2.pdfPTO Opposition: Giacomini - Director's Brief (Red Brief).pdf
BPAI Decision: BPAI Decision in Giacomini
Related Discussion: Patently-O Discussion of Ex Parte Yamaguchi (BPAI 2008)

Happy Pro Bono Week

2009-11-14T19:14:57-00:00

It’s National Pro Bono Week. I’m presently involved in two pro bono cases: United States v. Drew and McCane v. United States. It might be interesting for our readers who are lawyers to say what pro bono matters they are involved in right now; I hope they will consider telling us in the comment thread.

Puzzling Suppression Decision in Email Search Case

2009-11-14T19:14:57-00:00

I'm as happy as anyone to see Fourth Amendment violations redressed, but a recent decision of Judge Block of SDNY, reported in The New York Times, leaves me scratching my head. Based on undisputed probable cause, the FBI obtained a warrant for an email account in a fraud case. Google turned over a CD copy of the account, and there was at least one "smoking gun" email. The judge suppressed for violation of the Fourth Amendment's command that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." But this warrant was particular; the...

Positive feedback and strategic enforcement

2009-11-14T19:14:57-00:00

If a group of individuals subject to some rule face an enforcement mechanism that is limited in its capacity, their rates of rule-violation will be interdependent.

Imagine a classroom of well-behaved children. When Johnnie throws a spitball at Suzie, Ms. Jones can give him her full attention, and Johnnie learns (and the others learn vicariously) that he can’t get away with throwing spitballs in Ms. Jones’s class.

Now imagine a classroom full of unruly children. When Johnnie throws a spitball at Suzie, Ms. Jones is too distracted by the need to break up the fight between Dick and Fred to have time to rebuke Johnnie, let alone the six others who are acting out at the same time. Johnnie and the others learn that they can get away with almost anything in Ms. Jones’s class.

Thus both the well-behaved and the ill-behaved classroom are self-sustaining situations. Indeed, they can be two equilibria of the same system: the very same children with the very same teacher may wind up either well-behaved or ill-behaved as the result of random accidents at the beginning of the period. This is an instance of the classic “tipping” model introduced by Thomas Schelling and popularized by Malcolm Gladwell.

In such a situation, the following statements can be rigorously demonstrated using fairly minimal behavioral assumptions, as Beau Kilmer and I show in a paper called “The Dynamics of Deterrence” (published in the Proceedings of the National Academy of Sciences, and adapted as Chapter 4 of When Brute Force Fails):

Increasing enforcement capacity can lower not only violation rates but the volume of punishment actually administered.
A temporary increment to enforcement capacity can have a lasting impact on violation rates if it succeeds in “tipping” the system from its high-violation to its low-violation equilibrium.
Even if increased enforcement capacity cannot be obtained, the same effect can be created by “dynamic concentration”: focusing enforcement effort on a subset of offenders until their behavior comes under control, and then using the enforcement capacity freed up by reduced violation rates among that initial focus group to expand the size of the group.

The logic of these claims can be illustrated in a simple two-person game. Let Al and Bob by rational, risk-neutral actors, both be subject to some rule, and let the cost of complying with the rule be $10 while the penalty for non-compliance is $15. Assume that Al and Bob are not conscientious about the rule: each treats a penalty dollar and a compliance-cost dollar as of equal value.

Let Al have the first move: he either complies or violates, and then Bob chooses whether to comply or violate.

Assume that the enforcement system is constrained to be able to punish only one violation each round. Thus if Al alone violates, he is punished with certainty; if Bob alone violates, Bob is punished with certainty. But if both violate, each is punished with probability ½.

What should Al do? If he complies, he pays $10. If he violates, he pays $15 if Bob also violates, but pays $15 with probability ½ if Bob complies. Since Al is risk-neutral, he values that ½ chance of a $15 penalty at $7.50. So he would prefer to violate, if Bob also violates, but would prefer to comply, if he thinks Bob will comply.

Under the standard “common knowledge” assumptions of game theory, Al can predict Bob’s behavior by assuming that Bob will act rationally. If Al violates, then Bob’s choice is between violating also, paying an expected cost of $7.50, or complying, paying a cost of $10. Thus Bob ought rationally to violate in that situation, and Al can be confident that he will do so.

Since Al prefers to violate if Bob violates also, and since Al knows that Bob will violate if Al violates, Al will indeed violate, as will Bob. Thus the score for each round is: violations 2, sanctions 1.

If the sanctions capacity constraint is relaxed so that two punishments per round can be given, then both Al and Bob know that violation will lead to certain punishment. Therefore, they both comply, and neither is punished: violations 0, sanctions 0. This illustrates the claim that greater sanctions capacity can lead not just to lower violation rates but to less actual punishment: a convincing threat never has to be carried out.

But – and this is the key point – it is not necessary to relax the constraint. A strategic enforcement authority can bring both Al and Bob in to compliance by establishing a priority order for punishment.

Say the enforcer announces that, if both Al and Bob violate, it is Al who will be punished. In that case, Al will certainly comply. But once Al has complied, Bob will also face certain punishment if he violates, so Bob will comply as well. Violations 0, sanctions zero. (The same is true if Bob is given priority; Al knows that Bob will comply, and therefore that if Al violates he will be punished.)

And the system can be extended to Charlie and Dan and Edgar: in theory to countably many potential violators. If no one wants to be the first violator, then no one will violate at all.

That, in a nutshell, is the key to having less crime and less punishment. The trick is making it work in practice. The HOPE probation-enforcement experience and the High Point low-arrest drug crackdown illustrate the feasibility of building actual enforcement programs on this basic principle.

True twit

2009-11-14T19:14:57-00:00

Here are last week's greatest twits from @roncoleman: RT @ptolawyer: Subway sues Vegas restaurant for TM infringement -TacticalIP.com IP Bully of the Month? http://bit.ly/3c2lNO RT @nowsourcing: RT @toprank The Truth About SEO http://retwt.me/180kb RT @VBalasubramani: AutoAdmit web defame case settled http://bit.ly/1DX5kp (@bnatechlaw) case –> issues re online interaction, anonymity RT @GuyKawasaki: 25 logos that underwent makeovers in 2009 http://om.ly/RDAr RT @EFF: NPR sends bogus [...]

Angels in the Backfield

2009-11-14T19:14:57-00:00

Here is an interesting story in the Times about a Georgia town in which a post-9/11 practice in which the cheerleading squad at a public high school "painted messages like “Commit to the Lord” on giant paper banners that the [football] players charged through onto the field." After someone raised concerns about this practice -- and, in one of the many fine twists in the story, that someone was a graduate student at Liberty University, who did not object to the practice but thought it raised legal concerns -- the school stopped it. The result was not a silencing of...

A Response to Delahunty’s “The Fourth Amendment Goes to War”

2009-11-14T19:14:57-00:00

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests.

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide.

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.”

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable. For example, in United States v. Green, a 2002 case, the Fifth Circuit upheld a roadblock inside a military base in part on the ground that the purpose of the roadblock was “to protect the military post,” not to detect criminal activity. According to Delahunty, this shows how the search for terrorist suspects triggers a very different set of Fourth Amendment rules.

Delahunty finds particular support in United States v. Verdugo Urquidez, a case held that the Fourth Amendment did not apply to the search of a home in Mexico belonging to a Mexican suspect with no voluntary associations with the United States. A part of the Verdugo opinion reasoned that applying the Fourth Amendment to military activities outside the United States would substantially interfere with the ability of the political branches to respond to foreign siruations properly. Delahunty reasons that the same reasoning should apply to military searches and seizures inside the United States: The governmental interest isn’t any less just because a threat occurs inside the United States.

Delahunty asks what would happen if the government received a tip that a terrorist group had concealed a weapon of mass destruction in an apartment building. Securing the whole building and detaining its residents to look for the WMD would violate the Fourth Amendment under Ybarra v. Illinois, but the alternative would risk hundreds of thousands of lives. Delahunty also points to Murray v. United Kingdom, an opinion by the European Court of Human Rights that interpreted Article 8 of the European Convention of Human Rights. Murray allow the detention of an entire family in the course of identifying a terrorist suspect, and noted that responding to a terrorist threat is different from responding to a traditional criminal threat.

II. A Reply to Professor Delahunty

Before responding on the merits, let me point out that the OLC opinion is highly puzzling because it has no facts. Fourth Amendment law is notoriously fact specific, but the OLC opinion speaks only in grand generalities. In particular, the opinion concludes that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists.” But what does that mean? What is the use of the military “against” terrorists? Is a use “against” terrorists if it has the general purpose of undermining terrorism, or is a use against terrorist only if it is actually a search or seizure of an actual terrorist and his property? And what is a “use” of the military? Is surveillance a “use”? Is traditional law enforcement a “use”? It’s hard to know what the OLC opinion is actually trying to say without answers to these questions.

On the merits, the most obvious problem is that the alleged choice between two “paradigms” — the law enforcement paradigm and the war paradaigm — has no support in any Fourth Amendment precedent or text. Indeed, Delahnuty does not rely on any actual Fourth Amendment cases or language to make the case for this fundamental choice. Rather, he looks to constitutional cases and text elsewhere in the Constitution, and then offers the theory that the Bill of Rights as a whole must face this choice. For example, Delahunty relies on the text of the Third Amendment, which distinguishes rights to quarter troops “in times of peace” versus “in times of war.” If the text of one section of the Bill of Rights has a particular feature, Delahunty suggests, it presumably carries over to other sections.

This is an interesting normative theory, but it is not found in existing Fourth Amendment law. There is no time of peace/time of war distinction in Fourth Amendment law. Indeed, the most significant expansions of the scope of the Fourth Amendment occurred in a time of war — the Vietnam war, which was raging at the time of the Warren Court criminal procedure revolution. And this revolution carried over to the national security setting in United States v. United States District Court, the leading case on applying the Fourth Amendment in the national security setting (a case that Delahunty somewhat curiously does not cite). In that case, the Justice Department argued that it did not need a warrant to conduct wiretapping for national security purposes when countering a domestic threat. The Supreme Court disagreed:

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government’s position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.

This is all quite far from the imagined choice between a “war paradigm” and a “law enforcement paradigm.” Perhaps there should be such a distinction. But the OLC opinion is supposed to be a statement of existing law, not a creative work of normative constitutional theory, and I think the opinion is wrong in seeing a “war paradigm” in existing law.

I was also not persuaded by Delahunty’s discussion of United States v. Verdugo Urquidez. The quoted passage from that case concerned military activities outside the United States. The Court explained that “the result of accepting [the defendant’s] claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries” (emphasis added). Indeed, almost every sentence in the paragraph mentions the limitation to extraterritorial searches and seizures. Given that, it is quite a major leap to extend the principle to searches and seizures inside the United States. And the very next sentence suggests one of several possible reasons for the limitation: “The United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” In contrast, such uses inside the country are rare. Of course, that’s not to say that this is the only or even the most persuasive reason to distinguish military searches inside the U.S. and military searches abroad, or that the two cases must be treated differently. My point is only that it’s a major step to say that a hypothetical discussed in the case of the latter justifies the same rule in the case of the former.

The OLC opinion is also odd in how it overlooks the exigent circumstances exception. The memo suggests that the Fourth Amendment must not apply to military operations inside the U.S. (or at least apply very differently) because the contrary would lead to outrageous results — such as not letting the government secure an entire building if an WMD is believed to be hidden inside it. But surely this would fall easily under the exigent circumstances exception to the warrant requirement, which allows reasonable searches and seizures without a warrant in emergency situations. It’s hard to think of a greater emergency than a nuke killing a few hundred thousand people, and the existing exigent circumstances doctrine would easily allow this regardless of whether the military or the police were doing it.

I was even more puzzled by the discussion of how the European Court of Human Rights interpreted Article 8 of the European Convention of Human Rights. Maybe I am just being provincial, but I can’t see how that is remotely relevant to the Fourth Amendment in the United States Constitution.

III. Points of Agreement

I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield. And this brings me to where I think Delahunty is clearly right: the Fourth Amendment standard for military conduct inside the United States surely is quite different than it would in the traditional law enforcement setting. Between the special needs doctrine, the exigent circumstances exception, and Verdugo-Urquidez, you would have a very different set of rules.

But it’s hard to say much more than that without being presented with some facts, hypothetical or real: As I said earlier, the Fourth Amendment is so fact-specific that grand generalities don’t get you very far. So the opinion is clearly right in its most modest claims, that Fourth Amendment doctrine is sensitive to national security concerns and that the warrant requirement relaxes in light of national security needs. But I think much of the opinion is weak, and its broader claims that the Fourth Amendment does not apply at all to the use of the military in the war on terror is wrong.

Evan Brown gets a gig

2009-11-14T19:14:57-00:00

InternetCases.com's Evan Brown is now the Legal Correspondent for the Internet TV show Viral, produced by Veoh Networks. Can't hurt that Evan is a Sean Hannity lookalike. Me, I don't get gigs. I get other things, like some press from time to time, but gigs, no. I think I would like gigs, though. [...]

“Social media and the legal community”

2009-11-14T19:14:57-00:00

Here are highlights from the October 16th seminar in Hackensack, New Jersey that some of you may have missed. Participants were Frank Burgos, head honcho of MSM power North Jersey Media Group, Melissa Shuman, marketing director of the Cole Schotz law firm, Phillips Nizer's Stacey Salmon and Jason Chupik of Mediabistro.com – – plus, of course, [...]

MasterCard card. Card card. Card.

2009-11-14T19:14:57-00:00

A reader writes to New York Times Q&A guy Stuart Elliot with a question that's on a lot minds: What's with this “Mastercard card” stuff you hear on the commercials? There are, evidently, two answers, the second of which was LIKELIHOOD OF CONFUSION®'s guess and the first of which is… well, here, read it for [...]

This Is Why I Don't Do The ICANN Reading For The First Two Years Of A Process

2009-11-14T19:14:57-00:00

I'm here in Singapore at the ICANN meeting. The third version of the Draft Applicant Guidebook to the new TLDs is out.

As to timing, the initial word is that the process will be kicked even further into the future. ICANN suggested in the opening remarks that the application process itself, intially scheduled for early 2010, may not even start until 2011. There are TLD start-ups out there carrying heavy salary loads and they were not happy to hear this. Of course if the dely is only until September 2010, that may seem like a relief.

Also, there is the issue as to 'dot brands,' TLDs consisting of a brand owned by that brand, such as .NIKE or .AMAZON (I'm using those as examples of famous brands, not because I have any reason to believe that those particular companies want those particular TLDs). It has been an assumption that TLD applications would be judged on various technical criteria but the judging would be 'content-neutral' (within reason).

Well, the word on the street is that two ICANN board members stated publicly on Sunday that they are opposed to dot brands and will work to reject such applications.

It's not clear to what extent they can bring that about - but ICANN may wish to clarify this issue before the Fortune 100 each pay $185k in fees to ICANN for dot brands.

Of one thing I am certain - I am glad I did not devote psychic energy to this process two years ago.

The Seoul meeting can be tracked and followed remotely here.

Court upholds eBay forum selection clause

2009-11-14T19:14:56-00:00

Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. October 19, 2009)

Everyone who signs up to use eBay has to assent to the terms of eBay's User Agreement. Among other things, the User Agreement contains a forum selection clause that states all disputes between the user and eBay must be brought to court in Santa Clara County, California.

After eBay terminated plaintiff Tricome's account, Tricome sued eBay in federal court in Pennsylvania. eBay moved to dismiss or to at least transfer the case, arguing that the forum selection clause required it. The court agreed and transferred the case to the U.S. District Court for the Northern District of California.

Plaintiff had argued that the court should not enforce the forum selection clause because it was procedurally and perhaps substantively unconscionable. The court found the agreement not to be procedurally unconscionable because Plaintiff did not have to enter into the agreement in the first place — he only did it to increase his online business. Furthermore, eBay did not employ any high pressure tactics to get Plaintiff to accept the User Agreement. Moreover, eBay had a legitimate interest in not being forced to litigate disputes all around the country.

The court likewise found the User Agreement was not substantively unconscionable either. It would not “shock the conscience” for a person to hear that eBay — an international company — would undertake efforts to focus litigation it is involved with into a single jurisdiction. Furthermore, having the forum selection clause would conserve judicial and litigant resources, in that parties and the courts would know in advance where the appropriate place for disputes concerning eBay would be heard. Finally (and rehashing an earlier point regarding procedural unconscionability), Plaintiff had a meaningful choice — he could have decided not to do business on eBay in the first place.

Map photo courtesy Flickr user sidewalk flying under this Creative Commons license.

Booker's Children: The Strange Segregationist Origins of Diversity?

2009-11-14T19:14:57-00:00

The title of this post was inspired by a conversation I had with Anders Walker (SLU), who appeared in our enrichment series at FSU this past Thursday; in truth, I hope something like it will be the title of his next book project. Anders gave a legal history talk discussing the range of responses to Brown v. Board, emphasizing how some Southern politicians used the cultural politics of Brown to focus efforts on combating delinquency through an expansion of the welfare state. That paper was all well and interesting, but we got to talking about some of his ideas and...

More Great Publicity for the Miami Law Foreclosure Fellowships

2009-11-14T19:14:57-00:00

You know you are having a good day when 'Above the Law' (ATL) writes something positive about you — and that was my experience this afternoon with University of Miami Law School Puts Some Money into Public Service.

In addition to not making me look bad — indeed, making me look nice — I especially liked the conclusion of the piece,

The recession has created a huge need for legal services. And it has created a glut of laid off or unemployed lawyers. But matching the attorneys to the work is difficult because it is tough to pay off law school debts by helping low income families fight off foreclosure proceedings. Miami’s programs aren’t going to fix that fundamental disconnect between the cost of law school and the need for legal services.

But the school has taken a nice step in the right direction. The fellowship stipend might not be much, but it is infinitely more valuable than lip service.

ATL is best known for ribbing or even bashing lawyers and law schools…and the commentators in its threads are ferocious on a good day, and worse otherwise. (Indeed, the first comment on the article reads, in full, “Suck it.”)

The law school also got a good write-up in the ABA Journal's Miami Law Grads Get $10K Foreclosure Fellowships to Fill Legal Services Gap.

Client Service Is Hard.

2009-11-14T19:14:57-00:00

Client service is hard. Thanks to Dan Hull at What About Clients? for the eloquent reminder.

Market Discipline? What Market Discipline?

2009-11-14T19:14:57-00:00

The New York Times reports that Congress and the administration might soon reach some kind of view on legislation for addressing “too big to fail” institutions. Off the table is Paul Volker’s proposal to re-establish some line between commercial banking and proprietary trading — some updated Glass-Steagall demarcation. On the table is the Treasury’s proposal to designate various institutions as “too big to fail” in various degrees and subject them to greater capital requirements, limits on risk-taking, and in addition require a so-called “living will” that would make clear how to disentangle these institutions from others in a crisis. I think the “living will” idea is not a bad one on its own, as long as we all understand the limits of what it gets you.

Much, much more puzzling to me is this description in the Times, quoting Michael S. Barr, assistant Treasury secretary for financial institutions (italics added to show the quote):

The White House plan as outlined so far would already make it much more costly to be a large financial company whose failure would put the financial system and the economy at risk. It would force such institutions to hold more money in reserve and make it harder for them to borrow too heavily against their assets.

Setting up the equivalent of living wills for corporations, that plan would require that they come up with their own procedure to be disentangled in the event of a crisis, a plan that administration officials say ought to be made public in advance.

“These changes will impose market discipline on the largest and most interconnected companies,” said Michael S. Barr, assistant Treasury secretary for financial institutions. One of the biggest changes the plan would make, he said, is that instead of being controlled by creditors, the process is controlled by the government.

Some regulators and economists in recent weeks have suggested that the administration’s plan does not go far enough. They say that the government should consider breaking up the biggest banks and investment firms long before they fail, or at least impose strict limits on their trading activities — steps that the administration continues to reject.

The changes will “impose market discipline”? How? They all seem designed to make for better prudential regulation by government regulators — not a bad idea necessarily, in fact not a bad idea at all — but hardly market discipline. As the Times says Barr says, if there is a big problem, instead of “being controlled by creditors,” the process will be “controlled by the government.”

Which, again, might conceivably make sense, if one trusts that prudential regulation by the government will be superior to using private ordering via the creditors to eliminate moral hazard and re-impose the risks on market participants. Everything about the Treasury’s arrangement, however, seems instead to contemplate allowing key financial firms to take whatever risks they can affirmatively take, knowing that they are going to get bailed out — the regulatory scheme contemplates it — and depending upon front line regulation to stop them by management or perhaps micr0-management.

I understand the argument that the firms have to be left as unified financial firms across ordinary banking and proprietary trading, because there is no real way anymore to establish, let alone police, the line. I get that, although simply drawing a bright line even if it is somewhat arbitrary and somewhat inefficient is not necessarily a crazy way to address it.

What I do not understand is the idea that we have to allow these firms to commingle these activities in order that ... what exactly? So that they can earn a better rate of return along with higher risks? But not such high risk and leverage that the regulators won’t be able to stop them in a big mess, while also managing to spot — and stop — the emergence of a new credit bubble? That’s a mighty big job — big and delicate at the same time.

Why shouldn’t we instead conclude the following?: The only levels of risk that regulators can really police are the ones that limit these institutions to the staid, limited return-limited risk models of ordinary commercial banking, which is to say, regulation not by risk and leverage management on the front line, but first of all by activity and line of business. If the risks are harder to spot than that, then the regulators will have no methodological grounds for saying in specific cases where to draw lines on risk and leverage as the firms chase higher returns.

You can tell me (a) that regulators have a way to calibrate these risks with such Goldilocks certitude, not too hot but not too cold — okay, but haven’t we been down that road recently and not happily? Or you can tell me (b) that there is no way to establish the line Volker wants between these activities. I can understand those responses. Although I think (a) is flat-out wrong; regulators can’t calibrate a middle ground of risk and leverage, and it is therefore better to regulate by drawing activity lines. As to (b) — well, as I said, I think Volker’s line can be somewhat arbitrary and still work. If the argument, however, is that the financial institutions need these higher returns on higher risk to thrive and survive — well, that sounds awfully like we’re once again storing up tail-risk to the public at compounded rates. It will all go swimmingly well — until it doesn’t in a big way, and the public will pay massively once again.

Put another way, I don’t see a justification for creating a conglomerate firm — one which combines a government-guaranteed banking firm with a proprietary risk taking firm — unless the idea is that the higher risk trading profits will benefit the lower risk part of the firm, while the lower risk part of the firm will anchor the higher risk trading ... how? What value does the lower risk part contribute — oh, I remember, a government guarantee. Why in principle couldn’t investors get the true economic value of each by buying shares of each? Isn’t the only real point of bundling these two firms together in a single holding company in order to tap the government guarantee for the entity as a conglomerate, implicitly in ordinary times and explicitly when the the tail-risk event occurs? If someone wants to explain to me what the additional value-added of creating this conglomerate is apart from the public subsidy, I am happy to be persuaded, but at this moment I can’t see what it is.

This Treasury proposal also assumes that shifting from creditors in bankruptcy to the government as regulator, but also bail-out party, will not have unintended consequences for the future of credit, when creditors realize that they are no longer controlling the process. Here’s one possibility that, I grant, I haven’t thought through and might be false: the government looks more attractive as a borrower as a consequence, because creditors at least know where they stand on that issue. I understand that the USG might want to shine as a borrower; is that good for the economy as a whole?

Again, I see a role for firm and rigorous prudential regulation and bank supervision, although I would prefer that it be a final step after having re-imposed the market discipline of failure, and then using regulatory ordering to deal with market failure that is left-over — something like Volker’s proposals or, for that matter, Sheila Bair’s views at FDIC that we need to get away from a too-big-to-fail concept in the first place. Neither of them is in the least bit opposed to strong bank regulation.

What I don’t see is how the policies described above are “market discipline” at all. It sounds to me like the words were just tossed in because that’s what you’re supposed to say.

When Pusher Comes To Shove

2009-11-14T19:14:56-00:00

I have heard of criminals straining to avoid detection, but this bloke seems to have gone to the other extreme, by refusing to strain when requested.
In police argot, a confession is often known as a 'cough'. Our man wouldn't have dared.

Federal Circuit Proposed Changes to Rules of Practice

2009-11-14T19:14:57-00:00

The Federal Circuit has proposed a set of about two-dozen amendments to its Rules of Practice. Under 28 U.S.C. § 2071(b), the court is required to provide "public notice and an opportunity for comment." Any comments on the rules are due to the Federal Circuit clerk by November 5, 2009. Below, I discuss some of the proposed changes.

Rules 8(d) and 18(d) Stays Pending Appeal: Often a losing party will almost simultaneously ask both the district court and the appellate court to stay injunctive relief pending appeal. The proposed rule would require the movant to identify "when it filed the motion in the district court [or agency] and why it is not practicable to await a ruling by the district court on that motion." The purpose of this rule is to help the appellate court avoid unnecessarily stepping on the toes of the district court judges.

Rule 21 Mandamus: Because the court often acts quickly in Mandamus actions, any reply brief "should be expedited if appropriate" or else the "court may act on the petition before the receipt of any reply." The Federal Circuit has been receiving a marked increase in the number of mandamus requests in the wake of its TS Tech decision where the court ordered a case moved out of the Eastern District of Texas.

Rule 29 Amicus Brief: Rule 29 is amended to clarify that a third party filing an amicus brief does not need to file a motion for leave to file if "all parties consented to the filing."

Caution for those using USPS: If your document "must be received by the court on a particular date, then the file might consider using an alternative method of delivering the document to the court, such as a commercial carrier or hand-delivery. The court cannot waive the deadlines for filing a notice of appeal or petition for review, even if the document was deposited in the mail in a timely fashion."

Rifqa Bary — the 17-Year-Old Convert from Islam to Christianity — Ordered Back to Ohio, But to a Foster Family:

2009-11-14T19:14:57-00:00

13 Central Florida News reports:

Bary will be turned over to a foster family that’s already set up for her in Ohio. However, her transfer home will remain a secret....

Bary’s time in Florida may be short lived, but her parents still have a long way to go to get to their daughter back home.

As you may recall, Bary claimed her parents threatened to hurt or kill her because of her conversion; her parents denied those claims. Here’s the transcript of the police interview of the girl (which has apparently just been released).

Thanks to Religion Clause for the pointer.

The Truth on the Merger Guidelines

2009-11-14T19:14:57-00:00

Our friends over at the Truth on the Market have organized an online symposium on the recent Department of Justice and Federal Trade Commission announcement that they will solicit public comment and hold joint workshops on the Horizontal Merger Guidelines (”HMG”). The symposium will run today and tomorrow, and the line-up includes a bunch of terrific folks, including Joe Ferrell from the FTC.

Bloggingheads, cont’d.

2009-11-14T19:14:57-00:00

Henry Farrell continues our conversation about my book. One thing he says is that international law should not be regarded as a single entity, which is either “good” or “bad,” but is a label attached to a multitude of cooperative arrangements undertaken by states, which should be evaluated on their own terms. Security Council resolutions have no inherent moral valence, even though they are issued pursuant to the legal authority created by the UN charter, and are legally binding themselves. The Security Council is a club of great powers, after all; it has no democratic (or other) legitimacy. The resolutions are valuable just insofar as they alert other states that the great powers agree on a course of action, which is a useful thing for states to know. The resolutions have pragmatic value, then, not moral value. By contrast, the laws of war really do have moral value because they serve a moral purpose—the reduction of suffering during wartime. Unlike the UN charter, the laws of war reflect moral norms that cross borders.

I am sorry that Henry, having read my book, thinks that I hold the contrary view, at least with respect to his broader methodological point. The global legalists I criticize are the ones who fetishize international law, not I. I’m not sure, though, Henry appreciates the radical implications of his argument, at least for the lawyers and states who purport to follow their advice. No one actually says that states should be free to disregard Security Council resolutions for pragmatic reasons. When the United States invaded Iraq, the main source of outrage—at least in some quarters—is that the United States violated the UN Charter. Why is this? The proper reaction, according to Henry, would be to tote up the costs and benefits of the American intervention, taking into account the fact that most other great powers disapproved of this intervention, and evaluate accordingly. There is no harm to international law per se; the only consequence of the failure to secure a resolution is that other states learned the great powers did not support the intervention.

However, I don’t understand why Henry draws such a sharp distinction between the UN charter and the laws of war. The laws of war just reflect a series of agreements between states, which have carefully advanced their interests through them. States never sought to advance the interests of humanity or universal moral values: they were trying to make warfare more useful and less damaging to their interests. Powerful states have agreed not to use certain weapons and tactics as long as two conditions are met: that any particular obligation give no other state an advantage over them, and that any other particular state reciprocate. Otherwise, one is just setting oneself up to lose the war, or to win only with more difficulty (meaning more casualties and destruction), and what is the point of that?

It is true that the Geneva Conventions contain limitations on reprisals and insist that many obligations are not dependent on the similar behavior of foreign states. But—and here is the important point—these rules are not actually obeyed when states go to war, at least not very much. States have always departed from the rules when military necessity beckoned, and they are not about to stop. It is only because people don’t or can’t understand this that American behavior in the conflict with Al Qaeda seems anomalous to them, leading them to claim that the United States or the Bush administration is uniquely evil. But the old idea never went away: since they don’t play by the rules, neither will we. Expect similar behavior in future wars.

The upshot is that the laws of war advance moral values only to the extent that those values happen to coincide with the interests of the states that make them. It should hardly be surprising that this turns out not always to be the case. The laws of war imagine a relatively morally neutral war—for example, where two powers fight it over some piece of territory that has been in dispute for reasons that no one any longer remembers. They make little sense for wars where, morally speaking, one side really should win and the other lose. Unfortunately, it turns out that many wars have this character—World War II is only the most obvious example, and most people are not bothered by the many violations by the allies (preeminently, the fire-bombing of civilian populations in cities) that seemed necessary at the time to counter the Nazis and prevent them from doing much worse. For the Gaza War, it’s hard to avoid the conclusion that observers’ positions on the law-of-war violations of either side is colored by their sense of the justice of that side’s cause. If so, this suggests that the aspirations of the laws of war—to establish a set of rules that both sides should comply with regardless of the justice of their cause—have failed.

Henry’s second point is about Kadi, an important case decided last fall by the European Court of Justice. Kadi arose out of a Security Council order to create a committee that would identify suspected terrorist financiers. States were required to freeze the assets of anyone on the list. The ECJ held that the procedural rules governing the committee violated norms of European law; hence if EU members froze Kadi’s assets, they would be in violation of EU law. It seems pretty obvious that the ECJ put EU members in the position of violating either international law or European law.

Henry thinks this conclusion is wrong, but I don’t see why. Perhaps he is just repeating his earlier point, arguing that moral values embodied in European law should trump whatever pragmatic value the Security Council’s asset-freezing system might have. If so, I agree with him—at least, that this is the right way to think about this problem. Henry’s main objection seems to be my statement in my book that the Europeans in this respect are acting like Americans (and any country, in my opinion), picking and choosing among those rules of international law that they want to support and hence comply with, and those that they do not. But what is wrong with this view?

I’m not sure what the answer is—Henry doesn’t say. But I suspect that his view is that European norms of due process ought to have some kind of international legal status, that the Europeans are justifiably trying to demand that other states respect their norms of due process. By contrast, he thinks that (for example) American efforts to expand the concept of legal self-defense, to include preemptive attacks on rogue states with WMDs is not justified, and was properly rejected by other states. Maybe he is right, but this argument just boils down to the claim that Europeans have better ideas about international law than Americans do. It’s not an argument about international law as it currently exists or how it is properly understood, or whether the Europeans obey international law more conscientiously than Americans do.

I will respond to some further arguments by Henry in my next post.

Discount for Marketing Strategies Conference

2009-11-14T19:14:57-00:00

As a follow-up to my post earlier today on the ABA Law Firm Marketing Strategies Conference, I am now able to offer readers of this blog a special "friends and colleagues" discount off the registration price. If you are interested, e-mail me at ambrogi-at-gmail.com or DM me on Twitter for the form that will give you the discount.

They Judged the Cartoons, but Did Not Read the Book

2009-11-14T19:14:57-00:00

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World. As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence. What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.“It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based on the opinions of experts who had not read the book in question.

Disenchanted with the New Facebook?

2009-11-14T19:14:57-00:00

I'm hearing it everywhere. People are pretty heated over the changes Facebook rolled out last week.

Other than some technical problems I'm having with errors and actually using the site, I think there is actually some good potential in the changes they've made.

First, let me reassure you that your "old" News Feed view is still there!

Just choose "Status Updates" in the left column. If you want that as your default, just grab it and drag it to the top of the stack.

So the new News Feed is a filter set up to show you the most popular items...the items people are engaging with on your wall and others' walls--likes, tags, and comments. The downside, of course, is that you may not want to see all your friends' friends posts and you will by the nature of filter.

The Live Feed shows (almost) everything new. It seems to still pick friends who are most actively engaged and it's limited to a certain number of friends (which you can change down at the bottom). The default limit is 250 so if you have fewer than 250 friends, you should be okay if you want to see them all.

Though it is frustrating to have changes pushed without much (any?) explanation, it's nice that we have more options.

Law Firm Marketing Strategies Conference

2009-11-14T19:14:57-00:00

Sorry that I will not be able to attend, because the ABA Law Firm Marketing Strategies Conference looks like it will be a great program. Check out the schedule and list of speakers. The conference is Nov. 12 and 13 in Philadelphia. Cost of the program ranges from $795 to $995 depending on your registration category.

U.S. News Surveys Out; Info Available Here

2009-11-14T19:14:57-00:00

Late last week, law professors everywhere -- four at each school -- received the annual U.S. News survey asking them (as well as lawyers) to assess the quality of every JD program in the country on a scale of 1-5. In ranking law schools, U.S. News considers "input" measures like the LSAT score and GPA of incoming students, and "output" measures like bar passage and employment rates. In between, and also part of the formula, is an attempt to assess the "value added" by a particular school relative to others. To get at this, U.S. News primarily uses this survey....

ODR Cyberweek Starts Today

2009-11-14T19:14:57-00:00

The seminal annual event in online dispute resolution, ODR Cyberweek, kicks off today and continues through Friday. This free-of-charge and entirely online event features an array of discussions, simulations, demonstrations and other activities related to ODR. It is sponsored by the National Center for Technology and Dispute Resolution.

Here is a program of events and a guide to navigating it all.

Tracking the Use of Continuations

2009-11-14T19:14:57-00:00

Mark Lemley and Bhaven Sampat have released a new working paper that uses PAIR data to draw some conclusions about the current patent system:

Conclusion: The evidence illuminates the patent prosecution process as a continuing negotiation between examiner and applicant. That negotiation does not end with an initial or even a final rejection. Interviews and amendments after final play an extremely significant role in generating patents, and in limiting the scope of those claims as well. Nor is that the end of the process. Continuation applications are flourishing. They have broken into two roughly equal groups, with different uses. Many applicants are using RCEs to keep fighting for claims that the examiner wasn't willing to give them. The second group is filing continuation applications rather than RCEs. They have opted for a slower process, either because they want delay so that they can modify their application to track developments in the marketplace or because they want multiple patents to build an effective fence around a single invention.

In the paper, the authors implicitly retreat from earlier work criticizing the patent examination process –suggesting that their results here "may be a hopeful sign for patent examination: even though the PTO ultimately grants patents on a large majority of the applications it receives, it may still be serving an important gatekeeper function by requiring applicants to narrow their claims. (This assumes that most of those amendments narrow the claims; that seems likely, but we cannot test it empirically)."

Read the paper on SSRN.

How Can Asking Questions Improve Tax and Spending Policies?

2009-11-14T19:14:57-00:00

One of the friction points in the debate between those advocating major tax reductions or even elimination and those advocating funneling money through government programs is the allegation that government involvement in projects and activities generates higher inefficiencies because of presumed waste. Another friction point is the contention by those trying to reconcile these competing positions that some of the problem arises from taxpayer noncompliance. On Friday there came news of two totally different inquiries, both involving governments on different sides of the Atlantic Ocean, that might illuminate a path to working out the conundrum.

The first article, City Peers Deep into Life at BRT, described what the mayor of Philadelphia recently did with respect to the Board of Revision of Taxes. As I’ve related in a series of posts, the most recent being Revising the Board of Revision of Taxes, the BRT is on the verge of a sweeping overhaul. In Revising the Board of Revision of Taxes and the many previous posts cited therein, I have explored, relying in part on a variety of Philadelphia Inquirer articles, the flaws in the administration of the Philadelphia real property tax, commented on the reasons, suggested ways to make the system responsive and responsible, and challenged political leaders to do what needs to be done. The mayor, according to City Peers Deep into Life at BRT, has decided to ask each employee to describe his or her job “in detail.” Bravo! The mayor claims that he is “trying to figure out how the organization functions and operates.” The joke answer is, “It doesn’t.” Seriously, BRT employees worry that their positions will be eliminated, a justifiable fear considering that many of them hold patronage jobs and at least some of them have little or no expertise in real property taxation. It’s not unusual for someone taking over as chief administrative officer of a business, an agency, a school, or any other organization to try to determine who does what and why, and then to give serious thought to how efficiencies, whether in terms of money, services to customers, or product development, can be improved. It’s clear from reading City Peers Deep into Life at BRT that if a person moving into the CEO’s office of a corporation encountered what goes on at the BRT, heads would roll, figuratively. Reading that latest Philadelphia Inquirer is an essential task for anyone who wants to see how badly things can get when politics takes over a government agency.

The second article, Seeing What Every Liv, Knut, and Terje Earns, describes the issuance by Norwegian tax authorities of the skatteliste for 2008. A skatteliste is the tax list, which discloses the annual income and total wealth of Norway’s taxpayers. The article explains the “media frenzy” that comes with the release of the information. No kidding. Because the information is in digital form, it takes mere seconds to ascertain information about neighbors, friends, celebrities, and anyone else about whom people are curious. This is not a new practice. It had been followed until a few years ago, when a conservative government outlawed the practice, but a change in government brought a repeal of the prohibition. The practice has its advocates and critics. Advocates focus on transparency and social equality they deem essential to the functioning of a social democracy. Opponents see invasion of privacy, impetus to criminals seeking worthwhile targets, and inspiration for playground bullies to taunt classmates whose parents are not as well-off as their own and busybodies to question neighbors about their lifestyles.

So would the collection of tax and government spending become more efficient and less objectionable if the nation started asking some tough questions? Does it make sense to ask every federal, state, and local government employee to describe in detail what he or she does? Would it make sense to ask supervisors and co-workers the same question not only of themselves but of others in the office? Would that not make it easier to clear out the deadwood in terms of inefficient programs, unproductive employees, and other questionable investments of taxpayer dollars? Ought not taxpayers, who are in some sense the employers, know what they’re paying people to do? Understandably, one would not ask for the release of national security information, the names of suspects being investigated, the details of information being disclosed in grand jury rooms and military policy meetings, but would it not create pressure on the Congress to take more responsibility for its funding decisions if it turned out that in some offices 10 people were being paid to do what 3 people could do?

And does it make sense to disclose to the public what people report on their tax returns? Unquestionably, whatever the folks in Norway may have decided to do, the cultural tradition in this country, and probably in many others, is that one of the most impolite questions to ask of someone is how much they earn or how much they are worth. Yet the salaries of many people are public knowledge. In some states, the compensation paid to public employees, including faculty at state universities, is included in legislative budget proposals. The salaries of many public officials are in the public record. Even in the private sector, the salaries of the tax-exempt organizations’ five highest-paid employees are reported to the IRS on forms available to the public (and that will soon change to include compensation information on many more employees of those organizations). Filings with the Securities and Exchange Commission include salaries for certain private sector corporate employees. The salaries of many professional athletes are tossed about in newspapers, on blogs, and in digital message board discussions. Somehow Parade magazine manages to use these sources, and others, to report periodically on what Americans from a wide array of locations and careers are earning. There even are books listing the names and salaries of America’s millionaires, but one ought not assume the information is correct.

It’s understandable why some people would not their salaries or net worth disclosed. It’s easy to construct scenarios in which people’s behavior would change if they knew another person’s income and wealth, and in which a person’s own behavior would change if they knew that everyone else knew their income and wealth. Excuse the cynicism, but imagine what the dating world would be if people walked around, in effect, with name tags that included income and wealth. No thank you. Imagine the sort of questions asked of public officials who disclose income and related information, such as charitable contributions, being asked of every citizen. Would not churches with policies of tithing find themselves dealing with congregational murmurs about the giving habits of their members? My biggest concern is that the numbers disclosed by the government in Norway are numbers provided by taxpayers, so there’s no assurance that the figures would be correct. The person trying to hide income from someone else is probably going to try to hide it from the government. On the other hand, this sort of disclosure might cause more instances of what happened thirty years ago in the Washington, D.C., area, when neighbors in a neighborhood of modest homes and lifestyles noticed one house where a collection of high-end luxury vehicles started turning up. Inquisitive neighbors did not call the police or FBI, they called the IRS (it’s D.C., remember) and it turned out they had uncovered a federal employee who was embezzling from the agency for which he worked. In other words, disclosure of income and wealth data (although the latter doesn’t show up as such on income tax returns) might shame Americans into full tax compliance, which we know would cut significantly into the federal budget deficit. Wouldn’t it be interesting to see who manages to get special low tax rates for huge portions of their income?

If people’s income were to be disclosed in Norwegian fashion, the questions would turn full circle. It would not be long before people turned to one another and asked, “So what do you REALLY do?” and asked for an answer that was “in detail.” The process could be educational. We could learn about jobs that appear easy but aren’t, jobs that appear difficult but are easy, and all sorts of other information that would bring transparency that strengthens the nation, its governance, its economy, its tax policies, and its work ethic. But it isn’t going to happen. At best, the proposal could serve as a bridge to bring together both sides of the Congressional political aisle, reminding the nation’s leaders that we do have things in common. Perhaps transparency and strength, wisdom and responsibility could take off from that discovery. Perhaps if the nation wants the same health care coverage Congress gets, it could subject itself to the same financial disclosure rules with which members of Congress must comply. Perhaps that’s as good a question to ask as is what do you do and how much do you make. Perhaps.

More on partisan media

2009-11-14T19:14:57-00:00

Jack Balkin has a great post linking the White House-Fox News feud to the rise (or re-rise) of the adversarial partisan press in the early 21st century. Fox, Balkin argues, is the heir to the party press of the late 19th-century, when newspapers were owned, operated, and controlled by the various political parties. Although not party-owned, Fox is aligned with one party, so as to be a virtual political and policy mouthpiece for it. And there is no line between “news” and “opinion” and no real attempt to maintain one. Balkin offers two conclusions, which I endorese, about the current...

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2009-11-14T19:14:57-00:00

July 1993 - The Expert and the Tooth Fairy

From Robinson C. Ramsey of Wharton, this excerpt from the deposition of an economist - taken by Darryl Carter of Houston (Soules & Walace).

Q. Well, let me ask you this: You've determined that in your best judgment to fully compensate Mr. White for the present value of his future loss of projected earning capacity, Mr. White would have to be paid approximately $123,000 in cash today, true?

A. Yes.

Q. Now, if the tooth fairy flitted into the room and increased that number by 25 percent and sprinkled that additional $35,000 on Mr. White as additional compensation for the present value of his projected future lost earning capacity, then according to your model and your calculations that additional $30,000 would be overcompensation to Mr. White, wouldn't it?

A. If the tooth fairy gave him an extra $30,000 .... If the tooth fairy did it, then that would certainly make him re-evaluate his belief in the tooth fair.

Precedential No 42: TTAB Denies Fraud Summary Judgment Motion Due to Inadequate Pleading of Claim

2009-11-14T19:14:57-00:00

The Board has now populated the post-Bose fraud landscape with another precedential decision, this one aimed at the proper pleading of a fraud claim. It points out that allegations made solely on information and belief "must be accompanied by a statement of facts upon which the belief is founded." Moreover, "[a] pleading of fraud must also include an allegation of intent." Asian and Western Classics B.V. v. Lynne Selkow, Cancellation No. 92048821 (October 22, 2009) [precedential].

Petitioner Asian and Western contended that summary judgment was proper because "there was no use of the mark on some of the goods [bracelets] set forth in the registration" when Ms. Selkow filed her Section 8 and 15 declaration. The Board looked at the relevant pleading and found that, in light of Bose, the fraud claim was insufficiently pleaded.

FRCP 9(b) requires that the elements of fraud be pleaded with particularity. [What are the elements of fraud? a false statement, knowingly made, with intent to deceive, which was relied upon by the injured party to its detriment. ed.]

Petitioner alleged the following regarding fraud:

3. Petitioner is informed and believes that Selkow did not have bona fide use in commerce of the KL Design Mark at either the time the application for registration was filed or the date of the registration.

4. Petitioner is informed and believes that despite not having any bona fide use of the mark in commerce, Selkow submitted false statements to the trademark office attesting to such use when she filed her application for registration. Selkow knew or should have known that the statements were false, and thus the registration was obtained fraudulently and should be cancelled.

The Board quoted the CAFC's decision in Exergen Corp. v. Wal-Mart Stores Inc., 91 USPQ2d 1656 (Fed. Cir. 2009)in observing that "[p]leadings of fraud made on 'information and belief,' when there is no allegation of ‘specific facts upon which the belief is reasonably based’ are insufficient." "[T]o satisfy Rule 9(b), any allegations based on 'information and belief' must be accompanied by a statement of facts upon which the belief is founded"” The Board then cited Kowal v. MCI Comm’n Corp., 16 F.3d 1271 (D.C. Cir. 1994) for the following point: "[P]leadings on information and belief [under Rule 9(b) require an allegation that the necessary information lies within defendant's control, and … such allegations must also be accompanied by a statement of the facts upon which the allegations are based."

Here, Petitioner’s fraud allegations are based solely on information and belief and fail to meet the particularity requirement of FRCP 9(b): "they are unsupported by and statement of facts providing the information upon which petitioner relies or the belief upon which the allegation is founded (i.e., known information giving rise to petitioner's stated belief, or a statement regarding evidence that is likely to be discovered that would support a claim of fraud." [Curiously, the Board then noted that the "necessary factual information" on which the allegation of paragraph 4 was based may be found later in the pleading. ed.]

Moreover, citing Bose, the Board pointed out that "[a] pleading of fraud on the USPTO must also include an allegation of intent." A statement that the applicant or registrant "knew or should have known" that the statement was false or misleading is not sufficient "because it implies mere negligence and negligence is not sufficient to infer fraud or dishonesty." [How about "must have known"? ed.

The Board then cited Crown Wallcovering Corp. v. The Wall Paper Mfrs. Ltd., 188 USPQ 141, 144 (TTAB 1975) for its statement that "in order to state a claim upon which relief can be granted on the ground of fraud, it must be asserted that the false statement complained of were made willfully in bad faith with the intent to obtain that to which the party making the statements would not otherwise have been entitled."

In light of the inadequacy of the pleading, the Board dismissed Petitioner’s summary judgment motion as moot, since one cannot obtain summary judgment on an inadequately pleaded claim. Petitioner was allowed 20 days to file and serve a proper pleading.

Finally, taking one last kick at the summary judgment motion, the Board pointed out that, even if it were considered on the merits, the motion must fail because "genuine issues remain at least with respect to respondent’s intent to commit fraud on the USPTO."

"A party making a fraud claim is under a heavy burden because fraud must be ‘proven to the hilt’ by clear and convincing evidence, leaving nothing to speculation, conjecture, or surmise; any doubt must be resolved against the party making the claim. *** The factual question of intent is particularly unsuited to disposition on summary judgment."

TTABlog comment: I haven't been able to access this case on TTABVUE this morning, so I'm holding off my comments until I can see all the allegations in the pleading, including the "necessary factual information" that the Board referred to. If the "necessary factual information" was included in the pleading, why were the fraud allegations inadequate?

Text Copyright John L. Welch 2009.

Blawg of the Day - eDiscovery 101

2009-11-14T19:14:57-00:00

Bill Tolson is director of legal and regulatory solutions at Mimosa Systems, so he knows quite a bit about electronic discovery. He's blogging about the subject at eDiscovery 101, where he's discussing legal holds, the Electronic Discovery Reference Model (EDRM), and the occasional legal joke.

Making Legislative History for Law Review Purposes

2009-11-14T19:14:57-00:00

Use of legislative history is famously controversial for purposes of statutory interpretation. But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting. I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965. No one doubted that the Act removed racial and ethnic bars from an immigration policy that until then preferred whites, but many commentators called the subsequent racial diversification of the immigrant stream, and therefore the browning of America, as a classic unintended consequence, which, if it had been...

Links for 2009-10-25 [del.icio.us]

2009-11-14T19:14:57-00:00

Net Neutrality in Canada Still a Work in Progress

2009-11-14T19:14:57-00:00

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management - known as the net neutrality decision - attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic. While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, my weekly technology law column (Toronto Star version, homepage version) argues the reality is that the decision establishes several notable requirements and restrictions, but leaves the door open for further action from the government.

First, the commission adopted a new test to determine reasonable traffic management practices. Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Second, the commission rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks. Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.

Third, the CRTC banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes. By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.

These conditions ensure that traffic management is not a free-for-all. The days of ISPs arguing they can do whatever they please on their networks - as some intimated during the summer hearing - are over.

With the CRTC framework in place, it now falls to Industry Minister Tony Clement to become more engaged on the issue. Both the Liberals and NDP have expressed support for net neutrality and some groups have renewed their demands for new legislation.

Yet Clement can advance the issue in several meaningful ways without tabling a bill. Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices that run afoul of the commission's test and file complaints.

When asked about the issue last week in the House of Commons, Clement stated that he is "watching those providers very closely and I do not want to see a situation where consumers are put at risk in terms of their access to the Internet." He can go several steps further by asking the CRTC to conduct regular compliance audits of ISP traffic management practices and by providing financial support to consumer groups who wish to conduct their own investigations.

The federal government also can play a significant role in establishing neutrality for wireless Internet access. The CRTC acknowledged that many of the same issues arise in the wireless context and that it expects wireless carriers to follow the same guidelines. Within the next two years, the federal government will conduct another spectrum auction as part of the digital television transition. Clement could incorporate net neutrality requirements directly into the bidding process, effectively mandating neutrality into new wireless services.

Finally, Clement should acknowledge that net neutrality concerns are largely a function of an uncompetitive marketplace that allows ISPs to leverage their positions without fear of losing customers. The best way to address net neutrality is therefore to give priority to increased competition in the Canadian Internet marketplace.

Multiple studies have concluded that Canadians pay higher prices for slower speeds as compared to many other countries. If Clement can solve that problem, he'll likely go a long way to addressing net neutrality in the process.

How to Have Less Crime and Less Punishment

2009-11-14T19:14:57-00:00

Thanks to Eugene’s generosity, I will have access to this space all week to expound what I see as a great moral and practical imperative: to put our new knowledge of what controls crime into use, with the goal of achieving “half and half”: half as much crime and half as many people behind bars in a decade as we have today. (Here’s the a book-length version of the argument.)

*********

Engineers have a sardonic saying: “When brute force fails, you’re not using enough.” For three decades, in the face of the great crime wave that started in the early 1960s, we have been trying to solve our crime problem with brute force: building more and more prisons and jails. We now keep 2.4 million of our fellow human beings under lock and key at any one time, and that number has continued to grow despite the spectacular drop in crime between 1994 and 2004, which took crime rates to 50% of their peak levels.

Imprisonment at five times the historical level in the United States, and at five times the level of any of the countries with which we would like to compare ourselves, has not been sufficient to fully reverse the growth in crime; current crime rates are still at 2.5 times the level of the late 1950s and early 1960s. Even that discouraging number understates how much worse things are now than they were half a century ago; today’s high crime rates persist in the face not only of ferocious punishment but also of greatly enhanced – and very costly – adaptations by potential victims to avoid being victimized. Those adaptations range from buying alarm systems to moving to the suburbs. Most of all, they involve avoiding risky situations. The need to take such precautions leaves all of us less free than Americans were half a century ago.

The burdens of crime, and of punishment, are not evenly spread across the social landscape. Homicide is the leading cause of death among black men between 18 and 30 who did not finish high school, and a black male dropout also has a better than even chance of serving prison time before turning 30. William Stuntz has calculated that the incarceration rate among African-Americans today is higher than the incarceration rate in the Soviet Union the day Stalin died.

Is there an alternative to brute force? There is reason to think so, and pieces of that alternative approach can be seen working in scattered places throughout the world of crime control. But the first step in getting away from brute force is to want to get away from brute force: to care more about reducing crime than about punishing criminals, and to be willing to choose safety over vengeance when the two are in tension.

If for a moment we thought about “crime” as something bad that happens to people, like auto accidents or air pollution or disease, rather than as something horrible that people do to each other—if we thought about it, that is, as an ordinary domestic-policy problem—then we could start to ask how to limit the damage crime does at as little cost as possible in money spent and suffering inflicted.

The answer to that question will not be the only factor that influences, or should influence, crime-control policy. Justice both requires and limits punishment. Laws, customs, and institutional arrangements—including the Constitution and ideas such as “innocent until proven guilty”—limit, and ought to limit, the range of options. Still, thinking about the advantages and disadvantages—what economists quaintly call “benefits” and “costs” —of different approaches to crime control is one place to start the inquiry.

Crime causes damage: directly to victims, and indirectly as people incur costs, and impose costs on others, to avoid victimization. The value of the total damage is hard to reckon, but serious estimates (even excluding “white collar” crime) run as high as $1.4 trillion per year: more than 10 percent of GDP. Furthermore, this damage falls most heavily on the poor and socially marginal people least able to bear it; crime not only concentrates around social disadvantage but also sustains it, increasing costs for consumers and employers alike and thereby driving away resources and opportunities.

One way to frame the general problem of crime-control policy is, “What set of actions would result in the least total harm and cost, from crime and crime-control efforts combined?” Neither across-the-board lenity nor maximum severity offers the right answer to that question. In order to squeeze the maximum crime prevention benefit from every prisoner-day of incarceration, we need to learn to deliver the minimum effective dose of punishment and to make as much use as possible of convincing and clearly communicated threats rather than actual punishments.

The principles of effective deterrence are straightforward, though making actual institutions implement those principles is complex. Punishment should be swift and certain rather than severe; those subject to it should know precisely what actions will lead to punishment; efforts should be concentrated, rather than dispersed, to enjoy the benefit of the positive-feedback process in which reduced offending leads to increased deterrence.

Since punishment is always a cost and not a benefit, we should also be alive to the many possibilities to reduce offending without punishment: everything from a later school day (to shorten the burglary-friendly time period when adolescents are out of school but grown-ups have not returned from work) to removing highly criminogenic environmental lead to sending nurses to visit first-time mothers in need of coaching.

Our current crime rates and our current incarceration levels are national disgraces. We know how to fix both halves of that problem, and there is no good excuse for not doing so.

Should Israel Attack Iran?

2009-11-14T19:14:57-00:00

That was the topic of a conference last Friday at the American Enterprise Institute. The three panelists who addressed this question agreed that an Iranian nuclear arsenal would be worrisome indeed, not because Iran would immediately incinerate Tel Aviv, but because it would almost certainly use its conventional forces and its terrorist infrastructure more aggressively once it enjoyed the protection of the Bomb, because an Iranian nuclear force would provoke a nuclear arms race in the middle east, and because collapse of the current regime, should it ever come, might put loose nukes into the hands of dangerous elements who are less interested than the regime in self-preservation or are less easy to identify and target. Some people believe that if every country had a nuclear weapon, the world would be more peaceful rather than more dangerous—“More Guns, Less Crime” internationally speaking—but the panelists did not. We survived the cold war but there were a number of close calls; given enough nukes and enough time, something very bad will happen.

John Bolton pressed the case for an Israeli attack with customary vigor, but the other two panelists were more persuasive. Michael Rubin believed that an Israeli attack would either not succeed at all or do no more than delay the nuclear program by a year or two. Logistics are too hard; Iranian defenses are good and getting better; the program is too advanced. Martin Indyk argued that diplomacy could still do some good, but the impression he gave was less that of enthusiasm about the prospects for diplomatic success, which sounded pretty hopeless, but, like Rubin, of the futility of military action, leaving diplomacy as the sole alternative.

With every day, the globe rolls farther from Obama’s (and Reagan’s) dream of a nuke-free world. Determined states can build nuclear weapons if they want to; foreign states are too divided to prevent them from doing so. The benefits of holding nuclear weapons, in terms of short-term security and national prestige, are considerable, and they will continue to increase as American power declines and U.S. security guarantees become less credible. The cost of developing nuclear weapons becomes, every year, a smaller portion of states’ national products and hence a smaller burden on their budgets. We will just have to live (or die) with this state of affairs.

I was given the humble—indeed, in context, vaguely comical—task of commenting on the law (also on my panel were Edwin Williamson and Gregory Maggs). Here is what I said.

1. The black-letter law.

Article 51 of the UN charter permits countries to use military force in self-defense; otherwise, security council authorization is required. Clearly, Israel will not obtain Security Council authorization, so the only question is that of self-defense. International law, like domestic law, understands self-defense in narrow terms. A state may act in self-defense by repelling an attack or countering an imminent attack, but self-defense does not encompass military attacks against states that merely pose a threat, however significant.

In international law, as in other fields of law, the black letter does not always tell us what we need to know. International law can change as a result of state behavior; treaties can fall out of use, they can be ignored, customary norms can pile up in their place. So it is legitimate to ask whether norms that recognize broader forms of self-defense have built up over the years and replaced the traditional narrow conception.

It’s a legitimate question but the answer is surely no. The negative reaction to the invasion of Iraq is a recent precedent. No state, as far as I know, accepted the Bush administration’s argument that the United States (or any other state) was entitled to launch preemptive attacks against states that develop WMDs and may hand them over to terrorists. An older but very close precedent is Israel’s attack on the Osirak nuclear facility in Iraq in 1981, which was condemned as a violation of international law by the Security Council. The only recent war that suggested movement in states’ understanding of the use of force norms was the 1999 intervention in Kosovo, which was also illegal—there was no Security Council resolution and the intervention was not in self-defense. But the major idea that arose out of that war was that military force could be used to stop humanitarian catastrophes—not the situation in Iran today—and in any event that idea was only briefly considered before it was shot down.

There is another precedent of great importance, however, albeit a kind of non-precedent precedent. This was Israel’s attack on a suspected nuclear facility in Syria in 2007. You might not remember the resounding international condemnation of this attack or the Security Council resolution declaring that Israel had violated the UN charter—because none of this occurred. The world was simply silent. True, no one declared that Israel had acted lawfully, but no one condemned Israel, either. What should we make of this? It has some significance, as I will discuss shortly, but it doesn’t establish that anticipatory self-defense is lawful.

Why don’t states accept a broader definition of self-defense? The argument in favor of such a definition is straightforward. Some states can become major threats long before they launch an attack. If other states are not permitted to take military action against them at an early stage, they may not be able to defend themselves until it is too late. This argument is not a bad one, but I suspect that the reason that states have not accepted this argument is that a broader definition of self-defense would be easy to manipulate, and so would end up gutting the prohibition on use of force. Perhaps also they believe that the Security Council can step in if such a situation occur, and use its legal authority to counter the threat. One can see why these views would be of cold comfort for the states that are being threatened.

2. The consequences.

It is a mistake in international law, as in domestic law, to stop with the black letter. Clients care about the consequences of violating the law, not the mere fact of it. When Israel attacked the Osirak nuclear facility in Iraq in 1981, it was universally condemned for its violation of international law. But nothing happened after that. The Security Council did not try to sanction Israel, nor did any country of any importance, as far as I know. As I mentioned above, there was no international response to the attack on Syria in 2007. Nor was there a response to the recent (alleged) Israeli attack on a convoy in Sudan. Some violations of international law—like some violations of domestic law—do not result in punishment.

There is no doubt that an attack on Iran would be condemned internationally, including possibly by the United States. But even if the United States condemned the attack and joined a Security Council resolution condemning the attack as it did after the Osirak incident, the United States would not permit the Security Council to impose sanctions on Israel, and it is hard to imagine there would be much enthusiasm for such a move among other states anyway. Nor does it seem likely that states would independently try to impose sanctions on Israel, or that any state would try to prosecute Israeli officials for aggressive war, which for various reasons remains a problematic international crime. Neither Israel nor Iran is a party to the International Criminal Court (which in any event does not yet have jurisdiction over the crime of aggressive war), and the United States would block a Security Council referral to the ICC even if some basis of jurisdiction could be devised. The consequence of an attack would most likely be diplomatic isolation of some sort, for some period of time, and (further) damage to Israel’s international reputation. Whether the benefits of an attack outweigh this cost is a question that only the Israelis can answer.

The Wall Street Journal on Alvarez v. Smith

2009-11-14T19:14:57-00:00

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture...

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern....

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

Pay Controls Once Again-Becker

2009-11-14T19:14:56-00:00

I sympathize with all the people who are upset by the very large bonuses, stock options, and other compensation received by heads of some financial institutions that ran their companies into the ground through bad investments. However, I also believe it is a big mistake to have a pay czar, Kenneth Feinberg, impose sharp cuts over the salaries and other compensation of the seven financial institutions, like Citibank, that received the most government bailout money. The Fed has made matters even worse by proposing to implement pay controls over thousands of banks as part of its regular review of their performance.

General controls over wages have frequently been tried in different countries. The usual motivation for wage controls is to reduce inflation by keeping labor costs, and therefore prices, from rising rapidly, although wage controls are invariably combined with general controls over prices as well. Inflationary fears were certainly behind the wage and price controls in almost all countries during World War II, and in the US under President Nixon from 1971-1973. These measures sometimes succeeded in suppressing inflation temporarily, but they also led to rationing of various consumer and producer goods because of weak incentive to produce or work when prices and wages are kept below their market values.

Companies can still compete for employees when higher pay cannot be offered as inducements by increasing fringe benefits to employees, such as longer vacations and subsidized lunches and other meals. US companies began to offer free health insurance to employees during World War II as a way to get around the wartime control over wages. The American health care system has suffered badly since then from this artificially induced connection between employment and subsidized health care.

In some respects, the effects of controls over pay are even more harmful when they apply only to a small subset of all employees, such as the proposed sharp ceilings on management compensation at the seven companies that received the largest amount of government assistance, or the scrutiny of pay of top executives at the thousands of financial institutions under the Fed's supervision. The most talented individuals at these firms will tend to leave because they will receive much higher compensation packages by financial and other companies that do not have their pay set in Washington. So the financial companies that received much government assistance and other banks would lose many of their best people just when they need talented management to help put their companies under a more solid financial foundations. Without the requisite talent, many of these companies may either go under, perhaps not a bad idea, or more likely the government will bail them out once again-not a pleasant prospect.

o prevent an exodus of whatever talent is left and to attract new talent, Feinberg and the Fed may try to differentiate between more and less able executives, and allow much higher pay for the best of them. But can a czar or the Fed perform that task better than the forces of market competition for talent? History indicates that is highly unlikely.

These controls over pay not only will cap salaries, but they would also reduce bonuses and stock options, and prevent the executives affected to cash in options for several years. The reasoning is that this will force executives to take a longer-term view of the risks and other decisions that they take. One irony is that, as pointed out by Yale's Jonathan Macey in a recent Wall Street Journal op-ed piece, Congress in a 1992 Act prevented corporations from deducting as a normal business expense any salaries that exceeded $1 million. As a result, corporations were encouraged to shift their pay to stock options, which received more favorable tax treatment.

I have not seen convincing evidence that either the level or structure of the pay of top financial executives were important causes of this worldwide financial crash. These executives bought large quantities of mortgage-backed securities and other securitized assets because they expected this to increase the average return on their assets without taking on much additional risk through the better risk management offered by derivatives, credit default swaps, and other newer types of securities. They turned out to be badly wrong, but so too were the many financial economists who had no sizable financial stake in these assets, but supported this approach to risk management.

The experience of other financial crashes also does not indicate that either the level or form of compensation of top financial executives were major factors in precipitating these crashes. Thousands of banks failed during the Great Depression, as did hundreds of American savings and loans institutions during the 1980s, without heads of these institutions in either case getting particularly high pay, or pay that was mainly in the form of bonuses and stock options. My impression is that this same conclusion applies to the Mexican bank crisis of the mid 1990s, and the Asian financial crisis at the end of the 1990s.

The generous bonuses and stock options received by financial executives may often have been unwarranted, but they are being used as a scapegoat for other more crucial factors. Financial institutions underrated the systemic risks of the more exotic assets, and apparently so too did the Fed and other regulators of financial institutions. In addition, large financial institutions may have recognized that they were "too big to fail", and that they would be rescued by taxpayer monies if they were on the verge of bankruptcy because they took on excessively risky assets.

Broadening Search: Is Google Enough?

2009-11-14T19:14:57-00:00

My latest technology column for the ABA Journal is out. It's called "Broadening Search" and it focuses on shortcomings people are finding with an over-reliance on Google search and covers some alternatives to Google for certain types of searching.

As I like to say, "The next generation of search is arriving, if you know where to find it."

In the column, I recommend that you assemble a toolbox of search tools and then choose the best tool for the job at hand.

I introduce you to tools you might want to learn more about: from Bing to Twitter Search to specialized search tools to Rollyo to Dogpile to Mahalo to Sensebot. I wanted to sketch out how broad the search landscape really is.

As I say in the article, "I worry, as should you, that a total reliance on Google will give you a limited or distorted view of the Web. You want to choose the best tools for the job at hand. It’s a new generation. Try out a few new search tools today and compare the results."

The details about the tipsse tools are in the article, of course, which you should now check out here.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

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Listen to The Kennedy-Mighell Report podcast on the Legal Talk Network.

Technorati tags: legal technology google search alternatives column

UM Foreclosure Fellowships in TIME Magazine

2009-11-14T19:14:57-00:00

TIME Magazine has a great story by Tim Padgett on UM's Foreclosure Fellowships, Another Housing Crisis: A Shortage of Foreclosure Lawyers.

Nice quotes from Yolanda Paschal, one of our great Fellows, from Carolina Lombardi, a senior attorney at Legal Services of Greater Miami Inc., and a few words from me. I'm glad that our program is getting some recognition. As the article says, the foreclosure defense problem is enormous, the legal resources available are puny compared to the need, and we at the law school are trying to do something about it.

Whether and how we can repeat this year's effort, however, still depends on what sort of funding we can raise for it. Fund raising is very very tough in the current economic climate. Our current plan is to shift away from giving fellowships to graduates and instead ramp up on a student-staffed housing-related clinic that might even be housed downtown. In a perfect world, I'd like to do both the clinic and the graduate Fellowships, but the funding is not yet in hand to make that possible.

Incidentally, the legal defense for borrowers that I mentioned in the the TIME article — that parties foreclosing sometimes don't actually know who owns the note — is featured in a column in today's NYT, Gretchen Morgenson's If Lenders Say 'The Dog Ate Your Mortgage'. In other cases there are different meritorious defenses, but it takes a trained person to identify them. And then no doubt there are the cases where people really will lose their homes no matter what you do; the point is to figure out which case is which rather than just give up. And that takes a lawyer.

The Electronic Legal Pad and the Post-Paper Practice of Law - Podcast

2009-11-14T19:14:57-00:00

Tom Mighell and I have recorded another episode of The Kennedy-Mighell Report podcast and it's now available on the Legal Talk Network and on iTunes, with an RSS feed here. The episode is called "The Electronic Legal Pad and the Post-Paper Practice of Law" (show notes website) and here's the episode description:

Will lawyers ever move past the ever-present legal pad as their most trusted tool for practicing law? Tablet PCs have been around for quite a while, but lawyers are now using iPhones, iPod Touches and other devices with touch screens. Are the days of the paper legal pad numbered? In this episode, co-hosts Dennis Kennedy and Tom Mighell discuss whether lawyers will ever embrace touch technologies.

We discuss whether the current role of multi-touch technologies in iPhones, IPod Touches and other devices, talk of new Tablet PCs, including the oft-rumored Apple Tablet, and touch features in Windows 7 will move lawyers away from their trusty paper legal pads to some kind of electronic version of the legal pad. We talk about our own experiences with Tablet and touch devices, analyze the prospects and make a few predictions.

In our audience questions segment (we always welcome your questions for any podcast), we look at recent large disclosures of Internet passwords, suggest ways people can do a better job on passwords, and ponder whether it's time to change all of our Internet passwords.

We end the podcast with our Parting Shots - practical tips you can use right away. I single out Andrew Dlugan's Six Minutes public speaking blog, especially its weekend list of great tips and links on public speaking and presentations. Tom talks about folder sharing and bulk uploading in Google Docs and alternatives to the Windows Task Manager.

Give our new episode a listen and let me know what you think. Show notes are here.

And try some of the back episodes as well.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Follow my microblog on Twitter - @dkennedyblog. Follow me - @denniskennedy

Technorati tags: legal technology podcast tablet pc touch legal pad collaboration

And Don't Forget About Neil Peart....

2009-11-14T19:14:57-00:00

At the Volokh blog, David Bernstein has a post about those "touchy Canadians." He writes: Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being...

It is Time for an Electronic Legal Pad?

2009-11-14T19:14:57-00:00

That's the question that Dennis and I ask in our latest Kennedy-Mighell report podcast, titled The Electronic Legal Pad and the Post-Paper Practice of Law. In this episode we're talking about the idea of "touch" technologies, and whether lawyers will want to make use of them. What spurred our discussion is the recent release of Windows 7, which contains some new touch screen capabilities. We also talk about passwords, and give some great Parting Shots. Check it out!

Re-thinking Structured Settlements

2009-11-14T19:14:57-00:00

S2KM continues its strategic analysis of the transitioning structured settlement market with an update and re-publication of S2KM's public structured settlement wiki.

Pay Caps for Financial Executives--Posner

2009-11-14T19:14:56-00:00

Limiting the compensation of a handful of employees at a handful of firms can't have any effect except to benefit the firms' competitors by making them more attractive places to work. The limitations are a form of scapegoating designed to appease public anger over the high incomes of financiers who precipitated an economic collapse that has caused widespread suffering, much of it to people who, unlike financiers, bumbling or inattentive government regulators, macroeconomists, members of Congress, and improvident homebuyers and home-equity borrowers, bear no share of blame for the collapse.

There is a slightly better, though still unconvincing, case for regulating (2) compensation structure, as distinct from the level of compensation, of (2) all financial institutions. Since the market for financiers is global (in part because even a very small country can become a major banking center, given the mobility of capital and of financial personnel and the absence of any need for elaborate infrastructure, physical resources, or a large domestic market), effective regulation of compensation structures would require agreement among all major and many minor nations. If that obstacle to effective regulation could be surmounted, the case for regulation would come down to the fact that front-loaded compensation of financial executives can increase macroeconomic risk.

To explain, the risk of the kind of financial collapse that occurred in 2008 was reasonably perceived as small; had it been perceived as large, the banking industry would have reduced its leverage and other sources of risk. The risk of the kind of financial collapse that occurred in 2008 was reasonably perceived as small; had it been perceived as large, the banking industry would have reduced its leverage and other sources of risk. That small-seeming risk was produced by individual risky transactions, and the object of compensation reform is to discourage such transactions. Suppose the transactions were the purchase of triple-A tranches of mortgage-backed securities at an attractive price, but carried a correlated annual risk of 1 percent that the investments would turn out to be worthless and bring down the firm. A financial executive paid salary or bonus based on the expected profit of such a deal would have an incentive to make it despite the slight chance that it would blow up eventually. Merely requiring, say, that a portion of his salary or bonus be placed in escrow for a few years would not deter him; the reduction in his expected compensation would be too small. Suppose 50 percent of the bonus he received on the deal was placed in escrow and the duration of the escrow was five years. Then he would face a 5 percent chance of losing half his bonus. That would be too small an expected penalty to dissuade him from making the deal. The penalty could not be made sufficiently heavy to disuade him without depriving him of most of his current income.

So I think regulating financial compensation is a mistake. At the same time I think financial executives probably are overpaid from a social perspective. The reason is that their high incomes are generated mainly by speculative trading of stocks and bonds and other financial assets. Speculative profits are not net additions to economic welfare, because they are offset by the losses of the speculators on the other side of successful speculators' trades. That is not to say that speculation has no social value. It generates great social value by bringing about improved matching of prices to values, which encourages investment in productive activities. But the amount of profit that a speculator makes is not the measure of the social value of a successfl speculation. The increase in social value is probably only a small fraction of the speculator's profits.

If financial speculation involved a lot of career risk, in the same way that becoming an actor does, then the high incomes of successful speculators, like those of successful film actors, would be compensation for the risk of failure. But financial executives, while they do sometimes lose their jobs because of bad trades, generally experience a soft landing because their training and experience equip them for a variety of good jobs in business, government, or academia.

Recipients of Harvard Ph.D.'s in physics are said to have two career tracks open to them: academia and Wall Street. No doubt many are attracted to Wall Street by the much higher incomes they can expect there. Yet their social value might well be greater in academia.

Higher marginal income-tax rates, or a stiff tax on financial transactions, might go a slight distance toward correcting the financial brain drain, but probably it is a problem that we shall just have to live with.

Help me pick an constitutional law textbook

2009-11-14T19:14:57-00:00

This spring I will be adjunct teaching at Denver University, Sturm College of Law. The course is “Advanced Topics in Constitutional Law: Fourteenth and Second Amendments.” The course will be mainly 14th Amendment, plus some Second Amendment (which is happens to be a good topic with which to study 14th Amendment original intent/meaning and incorporation), plus shorter treatment of the rights in Article I, sections 9–10; Article IV Privileges & Immunities, 9th Amendment, and 13th Amendment. The course is for second and third year students, who have already had a 1st-year constitutional law class, which was mostly about constitutional structure (commerce clause, separation of powers, etc.). One textbook will be Gun Control & Gun Rights, which I co-authored for NYU Press in 1999. For the main casebook, I am undecided, but leaning strongly towards Randy Barnett’s. Please supply comments about Con Law textbooks which you have used, and their various virtues and flaws. Of course I am especially interested in the pro/con user experience for the Barnett book.

Arguing for Corporate Liability Under the Alien Tort Statute, a Bullet Point List

2009-11-14T19:14:57-00:00

If I were to sit down and sketch out in a single sentence or two each the current approaches (”theories” is way too strong for what I mean here) arguing for corporate liability in the Alien Tort Statute, what would they be? I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding corporate liability.

One thing I’ve taken away from recent informal discussions of the issue with both academics and litigators, is that the question is not settled in US courts. Sosa left it open in footnote 20, and although I would earlier have described the leading circuit cases as having accepted the idea, I came away from these various discussions with a sense that it is more open to a change in direction than I thought — and that, even absent a new Supreme Court ruling on the matter. My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why. Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability. But I came away from recent discussions with a fairly inchoate sense — not a clear set of reasons — that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was a useful exercise. Feel free to add any more you like in the comments. The reason I stress here arguments in favor is that, as someone who thinks this is not the case, it is harder for me to think of the arguments for corporate liability. The arguments against corporate liability seem to be mostly variants of saying, the ATS requires as a threshold matter that there be a violation of international law. Corporations are not things that are capable of violating international law, and there can’t be a violation without a violator upon which law imposes liability; hence no violation of international law and no US action in tort.

The principal way of complicating this as an argument against corporate liability is to say, in addition: There are two hurdles to finding an international law violation — two axes, if you like:

You have to make the move from individual to corporate liability.
Separate and independently, you have to make the move from criminal law to civil law.

Neither one of these, continues the argument, is well founded in international law, and you have to satisfy each in order to show an international law violation. (Represented as a diagram, the two axes produce four quadrants and it’s fun to frame it that way, but I’ve not managed to figure out how to do graphs like that on Wordpress.)

One might disagree with those axes, of course, but they are what I think I see in defense arguments (including, full disclosure, my own expert declaration in the Agent Orange case) and defense-side expert statements, at least disaggregating a bit. There is then a long debate over what to take as constituting “international law” and evidence thereof, but leave that aside. That said as the basis of anti-corporate liability arguments, what’s the summary list of pro-corporate liability arguments?

One. Determine that international law allows for corporate liability “straight up” (Steve Ratner, Jordan Paust, and Ralph Steinhardt, et al. are right; Christopher Greenwood and James Crawford (in their politely skeptical Talisman defense-side affidavits) are wrong).
Two. Find corporate liability but only for a certain “threshold” set of really bad things — the Edwards approach early on in ATS litigation, which I understand to be now overtaken by holdings and newer theories.
Three. Determine that international law allows corporate liability because there is some amount of private liability in international law, and if there is for private individuals, then entity liability can be inferred for private actors (Talisman lower court approach). This approach depends somewhat on a further assumption that if corporate liability is not affirmatively ruled out, then it is okay for a court to read it in if it finds it reasonable, a little bit like a gap filler argument.
Four. Determine that whether international law allows for corporate liability or not, the fact that US tort law allows for corporate liability is enough for an ATS case. Once you have the international law violation, the fact of the acts is enough to satisfy the international law prong of the ATS, and then everything else, including who or what is liable, becomes a matter of US domestic civil law (with several variations, looking to federal common law or something else, but leaving aside those complications). This makes corporate liability the “hinge” that “swings” between the international law prong of the ATS and the US domestic law prong in tort. The objection is what I already noted above, the “acts” are only a “violation of international law” insofar as they are committed by something or someone legally capable of violating international law. (This is roughly the approach of Judge Weinstein in Agent Orange; yes, he acknowledged, there is doubt under international law as to whether there is corporate liability, but for purposes of ATS litigation, it doesn’t matter. It exists under US law and this is US litigation and it would be inconceivable not to have entity liability, as Judge Weinstein bluntly put it.)
Four. Determine that US precedents have already answered the question affirmatively, rightly or wrongly, so enough already, let’s get on with it (approximately Judge Schwartz’s approach in lower Talisman, saying that no one had pointed to any US precedent ruling out corporate liability, so on with things, or the 2nd Circuit’s latest Talisman latest opinion, ‘we here assume corporate liability’, on to aiding and abetting). (I paraphrase in all these characterizations.)
Five. Inferring corporate liability backwards from aiding and abetting secondary liability. This is an approach I do not think I have yet seen in the cases — possibly because I missed it or possibly because it seems too far-fetched — is to get to corporate liability from secondary liability. The usual order is to say, you have to get corporate liability in order to identify something that can aid and abet; it is logically prior. But you could reverse it, and instead argue that if secondary liability is an accepted premise, then whatever aided and abetted must, by tacit premise, be capable of being liable, hence, liability for corporations. This is subject to the objection raised above that in order to have a “violation” and not just bad acts, there must be a violator in virtue of being something legally capable of violating — and this presumably would be no less true of aiding and abetting. But if you accept the idea of inferring to fill a gap in liability, then I suppose you could argue that whatever aids and abets is presumed to be capable of being a violator and hence corporate liability.

If you would propose other lines arguing for corporate liability, feel free to enter them in the comments. I’m less interested in this post in the counter-arguments to the anti-corporate liability position; I’m trying to get a handle in short form on the affirmative arguments for. (Plus, I’m in an affirmative, highly positive state of mind! I’m writing off the top of my head, sitting in the bright sunshine outdoors at HLS this morning, hanging out before going back to DC; I could easily have left lots out of this discussion. LIstening to bass viol suites by Sainte-Colombe. Drinking super-expensive coffee and eating chocolate. Yeah, I’m burning out brain cells as I type. If Cambridge were like this every day, it would be … Palo Alto. What a beautiful bright fall day here, after a day of rain!)

Prosecutors Investigate Student Investigators

2009-11-14T19:14:57-00:00

It appears that some Cook County prosecutors don’t like journalism students looking into whether innocent people may have been wrongly convicted, so they’ve decided to investigate the students. The NYT reports:

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

The Harms of a Health Insurance Mandate

2009-11-14T19:14:57-00:00

Tyler Cowen discusses the effects of an individual insurance mandate in today’s NYT. A taste:

Americans seem to like the idea of broadening health insurance coverage, but they may not want to be forced to buy it. With health care costs high and rising, such government mandates would make many people worse off. . . .

Defenders of a broad health insurance mandate argue that it will lower average costs in the health care market. The claim is that many of the uninsured are young, healthy or both, and that bringing them into the insurance pool might lower average premiums by spreading risk across low-cost groups. Yet Massachusetts has had a health insurance mandate for several years and this cost-saving mechanism does not appear to be kicking in.

At this point, it seems more plausible that the cost of health insurance will keep rising, just as the costs of health care services have continued to climb. The upshot is that the burdens of mandatory purchase, the subsidy costs and the associated implicit marginal tax rates will all increase, eventually to the point of unsustainability. . . .

We’re often told that America should copy the health care institutions of Western Europe. Yet we’re failing to copy the single most important lesson from those systems — namely, to put cost control first. Instead, we’re putting our foot on the gas pedal and ratcheting up the fiscal pressures on the system, in the hope that someday, somehow, it will all work out.

As it stands, we’re on the verge of enacting a policy that is due to explode, penalizing many of the very people that it was ostensibly designed to help.

As with all of Tyler’s NYT columns, I recommend you read the whole thing.

Sunday Song Lyric

2009-11-14T19:14:57-00:00

“Weird Al” Yankovic turned 50 on Friday. (Can you believe he’s been around that long? And that he has a new album?) Yankovic’s exceedingly goofy, and quite clever. He also has a song off of his 2006 album, Straight Outta Lynnwood, that seems somewhat appropriate for the VC: “I’ll Sue Ya.” It begins:

I sued Taco Bell
‘Cause I ate half a million Chalupas
And I got fat!

I sued Panasonic
They never said I shouldn’t use their microwave
To dry off my cat

Huh, I sued Earthlink
‘Cause I called them up
N’ they had the nerve to put me on hold

I sued Starbucks
‘Cause I spilled a Frappucino in my lap
And brrr, it was cold!

I sued Toys’R’Us
‘Cause I swallowed a Nerf ball
And nearly choked to death

Ugh, I sued PetCo
‘Cause I ate a bag of kitty litter
And now I got bad breath!

The full lyrics are on a fan site here, and here’s the video. More “Weird Al” birthday wishes, etc. at Idolator.

I sued Taco Bell
'Cause I ate half a million Chalupas
And I got fat!

I sued Panasonic
They never said I shouldn't use their microwave
To dry off my cat

Huh, I sued Earthlink
'Cause I called them up
N' they had the nerve to put me on hold

I sued Starbucks
'Cause I spilled a Frappucino in my lap
And brrr, it was cold!

I sued Toys'R'Us
'Cause I swallowed a Nerf ball
And nearly choked to death

Ugh, I sued PetCo
'Cause I ate a bag of kitty litter
And now I got bad breath!

Where Do We Go From Here?

2009-11-14T19:14:56-00:00

We seem to be in the Phoney War phase of the economic crisis at the moment. With an election due next Spring at the latest most politicians are reluctant to draw our attention to the truly enormous hole in our public finances, and to the sacrifices that will be required to put matters right. I am no economist, but if you read around a bit you will find that even serious academics are running out of superlatives to describe the problems ahead. The truth is that nobody knows the real figures, but we do know that there will be a cut in the standard of living of most people, and that those people do not yet realise this.
I may be no economist, but I know a bit about the finances of the criminal justice system, and I also know a bit about politics; it is inescapable that the system will have to make savings on a massive and yet undreamt-of scale. We all have our little grumbles at the current niggling cuts in staff here and legal aid there, buildings left without maintenance, back-office functions moved to remote places, and the rest of it. But all of this will come nowhere near the required savings in a world in which justice will have to compete for funds with health, defence, pensions (above all, pensions) and all of the other services that the public now see as an entitlement without necessarily being willing to shell out for them. As someone recently said, if you offer people a choice between a new courthouse and keeping the Post Office open I don't think that many would vote for the court. We will have, in the old cliché, to think the unthinkable.
The justice budget is huge, encompassing as it does police, courts, prisons, probation, legal aid, the panoply of family courts and services for children, and much more. So where do we start? There won't be a lot of enthusiasm for big cutbacks in the police at a time when the terrorist threat has not gone away and a real depression could lead to public disorder. There are no votes in prisons, but there will be an outcry if some are closed and the inmates sent home. Probation is expensive, but cheaper than prison. We are always hearing about 'tough' community penalties, although many of us remain sceptical. Making them tough will cost money. Legal Aid is being squeezed all the time. As it is most people are not eligible, and leaving people to face the resources of the state and the skills of a barrister all on their own will cause serious injustice. But is that injustice more or less serious than cutting back on services for the elderly?
What about the courts? Small ones will be closed and sold off. Big court complexes offer economies of scale with services such as security, and it is easier to shift work between courtrooms to ensure maximum utilisation of expensive resources. But new complexes have to be built - they will cost money and will take at least five years to get going. Efforts will be made to push Crown Court work down the scale to magistrates' courts because the lower courts are far, far cheaper to run. More out of court disposals? Looks like a done deal, despite misgivings from magistrates lawyers and police. Are JPs cost effective? We don't get paid, as opposed to District Judges on about £100k a year, but we do need training travel and subsistence to be paid for. I suspect that the answer is that we are value for money, but perhaps not as cheap as we think.
Well what would you do? There are a lot of experienced people who comment on this blog and a lot of people in authority who read it. We know that maybe 20-25% needs to come off our budget. There are no right or wrong answers; this is about politics in the real world after 2010, whoever wins the election.

Books I Would Recommend to those Who Disagree With Me

2009-11-14T19:14:57-00:00

Megan McArdle and Tony Woodlief give their answers to an interesting question: What three books would you recommend to a thoughtful person who disagrees with you politically, in the hopes that reading them will change their mind?

My recommendations would depend a lot on whether the person in question disagrees with me from the right or from the left, and also on the extent of their previous knowledge of social science. Let’s assume, however, that the person is well to the left of me, and that they are an intelligent layperson rather than a scholar or public policy professional. In that case, I would probably pick Thomas Sowell’s Knowledge and Decisions - an excellent summary of the reasons why private sector institutions generally process information and make decisions better than government; William Mitchell and Randy Simmons’ Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy — a good, accessible exposition of the economic shortcomings of government relative to markets; and Richard Epstein’s Simple Rules for a Complex World, which explains how simple, libertarian legal systems are likely to work better than complex ones with more statism and regulation. The biggest area of disagreement between libertarians and liberals is over the role of government in controlling the economy. These three books focus on that issue. I have also picked books that try to persuade by analysis and evidence rather than emotional appeals — even though I have to admit that the latter are often more effective.

There is much less in the way of libertarian literature specifically directed at persuading conservatives. However, F.A. Hayek’s classic essay “Why I am Not a Conservative” is surely relevant for reasons I elaborated here.

People’s Names in Computing

2009-11-14T19:14:57-00:00

Some terms (and in this I include brand names) are based on people’s names, either the full names or abbreviations or other variants — czar, Mirandize, Ford, watt, HP, and so on. Some of those terms are used in relation to the programming or use of computers (though they need not be used solely in relation to computers); HP is one. Some of those, unlike HP, are based on the names of people who were not themselves personally involved in the development of modern computers, whether as technicians, investors, owners, managers, or otherwise.

Who are the four people whose names are used in four such terms that are most commonly used in relation to the programming or use of computers (again, whether brand names or otherwise)? Obviously, there’ll be disagreement about how common such use is, but I have four in mind that are indeed pretty common, and I’d like to see what you folks can come up with.

Again,

The person’s name had to be used within the term, whether it’s a full first or last name, or an abbreviations or other variant.
The person had to be not personally involved in the development of modern computers (so keep Michael Dell, for instance, out of it).
I’m focusing on use today, not in the past.

Alan Turing, for instance, doesn’t qualify, because he was involved in the development of modern computers, and because the Turing Test is also at this point generally used in relation to computing theory, and not commonly used in relation to the programming or use of computers. Herman Hollerith, of the FORTRAN H notation, would qualify in principle, since Hollerith did his work with devices that are not modern computers, but my sense is that this particular code has long been used only rarely, even among FORTRAN users.

Libertarianism and Culture, Round II

2009-11-14T19:14:57-00:00

Kerry Howley has responded to my post criticizing her essay on libertarianism and culture. I don’t think her response actually answers most of my main points, however. Kerry criticizes me for asking for a “bright line rule” about what cultural values libertarians should care about:

The lack of libertarian tolerance for ambiguity is an unfortunate thing. “Be more precise,” Ilya says. He says this of a jeremiad against bright-line-ism. There are no bright lines, even within the domains Ilya thinks most clearly delineated. When is coercion justified with regard to property? Libertarians disagree. What constitutes property rightfully obtained? Libertarians disagree.

There is a great deal of room between an absolute bright line rule and the degree of imprecision present in Kerry’s original essay. On one interpretation of her argument, almost all cultural norms are threats to freedom because all constrain our choices to at least some degree. On another, only a very narrow range are (perhaps those that leave people with little or no exit option from highly constricted lifestyles). As to what “libertarian” means, I agree that there is disagreement about it. However, to my mind, the term as commonly used delineates people who advocate either strictly limited government or none at all. Thus, libertarianism is primarily a political philosophy about the appropriate role of government in society, not a comprehensive ethical system that covers all the important issues in human life.

Kerry next claims that a concern about culture is essential not to all libertarians, but merely those who are libertarian primarily because they care about liberty:

A political philosophy of limited government is a means to an end. For a great many though by no means all libertarians, the end is individual liberty, understood as the ability to pursue one’s singular aims. For some, support of limited government is, as Tim Lee puts it, “one facet of a broader liberal worldview.” It would be beyond pointless to construct an argument about what supporters of small government “ought” to care about. My Reason piece argues merely that supporters of small government who care about liberty ought to care also about culture, in part because culture and individualism are very often at odds.

I appreciate the clarification. But even with respect to those libertarians who “care about liberty,” Kerry’s argument isn’t entirely successful. Liberty and individualism are not synonymous. For many of us, the liberty we care about includes the liberty to choose to live in cultural communities that aren’t necessarily individualistic. As I suggested in my original post, most of those who live in conservative subcultures in the modern West are not trapped there. They are exercising their liberty no less than Kerry and I are by choosing a different life. To use Kerry’s terminology, people who exercise “individual liberty . . . understood as the ability to pursue one’s singular aims” need not always value “individualism.” Moreover, I am one of those people who is a libertarian because I care about happiness as well as liberty. In a world of diverse people with very different preferences, some will find their greatest happiness by exercising the liberty to live in a socially conservative, nonindividualistic culture.

Kerry somewhat misunderstands me when she says that “Ilya says we cannot know what cultural norms are conducive to liberty broadly construed.” Rather, I argued that different cultural norms may be optimal for different people and groups, and that a libertarian society should therefore accept cultural diversity, at least within very broad limits. I also suggested that such cultural diversity actually increase our freedom by giving us a wider range of lifestyle choices — including conservative ones.

Finally, Kerry states that her essay was aimed at a very narrow target: “[T]he minority of libertarians, like [Todd] Seavey, for whom government is a leviathan so totalizing that thought beyond its influence is rendered impossible.”

She now says that she accuses only this small group of believing that ““social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist.” I appreciate the clarification, and I am sorry for misinterpreting her position (which, in my view, wasn’t stated nearly as clearly in her original essay). However, it now seems as if she is aiming at virtually a null set. After all, even those libertarians most focused on combating state power (e.g. — Murray Rothbard) admitted that nondefensive private violence and theft should also be opposed. And I would be surprised if Seavey himself thought that libertarians can afford to be completely indifferent to nationalism or patriarchy, given that both have historically promoted large-scale state-sponsored oppression.

In sum, I fear that further clarification is necessary. If all Kerry is saying is that libertarians who care about liberty shouldn’t completely ignore cultural values or private actions that might threaten freedom, I don’t disagree with her, and neither would any other libertarian commentator I know of. For example in my original post, I noted that some cultural values are problematic from a libertarian standpoint because they promote statism or aggressive private violence. This is perfectly compatible with believing that in the modern world government power is the single greatest threat to liberty, and that libertarians should therefore devote the bulk of their time and effort to combating that threat (areas like Somalia, where no meaningful state exists, are exceptions to this generalization). If, however, Kerry wants to argue that there is a wide range of cultural values that libertarians should be against because they imperil freedom even when no violence is used or threatened, then the criticisms I made in my original post still apply.

Some Friendly (Really) Advice to JStreet

2009-11-14T19:14:57-00:00

JStreet, which bills itself as a “pro-peace, pro-Israel” lobby, and aims to be a progressive counterpart to AIPAC, is having its convention starting tomorrow. Unlike some in the pro-Israel community, I’m not hostile to JStreet. First, I know one of the bigwigs in JStreet, and though he and I don’t have much in common politically, he’s a good guy and certainly is “pro-Israel”. Second, from approximately 1988 to Fall 2000, I held views on the Arab-Israeli conflict that would put me comfortably in the mainstream of the JStreeters. Events in the Summer and Fall of 2000 led me to change my views, but I understand where many JStreeters are coming from, and I don’t think their views should be dismissed as “anti-Israel.” Third, as a perusal of the comments on any major liberal blog will show, and as public opinion polls also show, Israel is quickly losing support on the American liberal-left. It’s vitally important that pro-Israel “progressives” have a home in which they can advocate both for Israel within the left, and for peacenik policies within the general American political and pro-Israel contexts.

That said, I think JStreet has a few issues it nees to deal with:

(1) It needs to avoid being seen as an extension of the Democratic Party. Many of the JStreet’s top people, including the guy I know, are bigshots in Democratic politics. JStreet’s website repeatedly talks about how it wants to support “President Obama’s policies.” AIPAC has been as successful as it has been in part because it doesn’t play favorites among the parties, but sticks to its pro-Israel knitting. JStreet needs to show that it’s also even-handed, that it’s a lobby for what it considers pro-Israel, pro-peace policies regardless of who is advocating those policies, and not an effort to more generally support Democrats and the political left. Another Nataional Jewish Democratic Council would be pointless, but a lot of JStreet supporters specifically hate AIPAC because it supports Republicans who support AIPAC’s positions. It will be interesting to see how JStreet squares that particular circle.

(2) During the Cold War, there were anti-Communists, and what one wag deemed “anti-anti-Communists.” The anti-anti-Communists were people who purported to be against Communism, but they spent almost all their efforts denouncing the “right-wing” anti-Communists, and precious little fighting Communism. Similarly, JStreet risks claiming to be “pro-Israel,” but really in practice being primarily a lobby against pro-Israel people who are further to the right, and precious little battling truly anti-Israel folks on the Left. (Would that make JStreet anti-anti-anti-Israel? Or just “anti-pro-Israel”?) Most of its energy so far, from what I can tell, has been spent attacking “right-wing” Jewish groups and individuals, and even Israeli government policies, and precious little battling the extreme hostility to Israel one often finds on the progressive left.

Over the Summer, JStreet honored the so-called “Juicebox Mafia”–young liberal Jewish bloggers Ackerman, Duss, Klein, and Yglesias. Now, these youngsters may be Jewsh, progressive, and e pro-peace, and in their hearts they may even be pro-Israel. But I’ve read many posts from them related to Israel over the years, and I can’t remember a single one that actually defended Israel from an unfair charge emanating from the left. They attack Marty Peretz, attack AIPAC, defend Walt and Mearsheimer, and so forth, none of which necessarily means that you can’t also be pro-Israel. But how does their pro-Israelness manifest itself? Certainly not in their blogging (Duss and Yglesias have vigorously defended Human Rights Watch, for example). And judging by their comments section, it’s not like they don’t have plenty of readers who are clearly not pro-Israel. So exactly why did JStreet honor them? (Yglesias is appearing on a JStreet panel Tuesday, “What does it Mean to be pro-Israel?” I’d like to see that one...)

Similarly, last Spring, JStreet put out a press release defending Theater J in Washington, D.C., for showing the depraved, borderline anti-Semitic, and certainly anti-Israel, play, “Seven Jewish Children”:

The decision to feature Seven Jewish Children at Theater J should be judged not on the basis of the play’s content but, rather, on its value in sparking a difficult but necessary conversation within our community. To preclude even the possibility of such a discussion does a disservice not only to public discourse, but also to the very values of rigorous intellectual engagement and civil debate on which our community prides itself.

J Street takes no position on the content of Seven Jewish Children – it is, after all, a play, and not policy. We do, however, stand unequivocally behind Theater J in its decision to feature programming that examines different facets of this critical debate over how our community can best support Israel. Such an opportunity for individual and collective reflection is integral in informing our shared interest in bringing true peace and security to Israel.

This is bizarre and illogical on so many levels, I don’t know where to start, and I won’t even try. But here’s my basic point: There was nothing pro-Israel about Theater J showing an anti-Israel play written by an avowed enemy of Zionism and Israel, and there was no reason for Theater J to involve itself in the controversy over the play, unless, again, it is trying to be “anti-anti-anti-Israel.”

(3) Related to point 2, JStreet has to have some implicit standard of what constitutes “pro-Israel.” There is nary an anti-Israel Leftist (or American politician) who won’t claim, no matter how ideologically hostile to Israel he is, that he is ultimately trying to help both the Palestinians and the Israeli people. I can’t say that I can come up with a litmus test offhand, or that a specific litmus test is even necessarily needed. But, to take a few examples of people I’ve written about on this blog, the definition of “pro-Israel” would have to exclude the likes of Joel Beinin, Juan Cole,Norman Finkelstein, Joel Stork, Philip Weiss, and Sarah Leah Whitson, no matter how “progressive” and purportedly “pro-peace” they are (pro-peace, to some people, means “Israel surrenders”).

I think some of JStreet’s stumbles––another one was a rather inartful press release condemning Israel’s incursion into Gaza when it started—have been a product of growing pains. Others seem to be a result of a conscious choice to first establish JStreet’s “progressive” credentials before it establishes its pro-Israel bona fides. But it’s going to have to do the latter at some point, and it’s going to have to anger some “progressives” while doing so. For example, if even the head of the leftist Israeli human rights group B’tselem has distanced itself from the Goldstone report, calling it biased and error-filled, that’s a pretty good signal that no “pro-Israel” group should express anything but contempt for it.

Government Commits to Withdrawing Lobby Spyware Changes

2009-11-14T19:14:57-00:00

Bill C-27, the anti-spam bill, is nearly through the Industry Committee with a limited number of changes. The Liberals have already stated that they would not be bringing forward the amendments promoted by the copyright lobby that would have permitted unauthorized access to personal computers in some situations. The same issue arose during Question Period in the House of Commons on Thursday. When asked about it by NDP MP Brian Masse, Industry Minister Tony Clement confirmed that the Conservatives would not bring forward a similar motion.

At Wednesday's hearing, there were a couple of changes instigated by Bloc. First, a specific exception for political parties was inserted into the bill. This is arguably unnecessary since the bill only covers commercial activity. Second, the Bloc succeeded in extending the period of a business relationship from 18 months to two years. The clause-by-clause review should conclude on Monday.

Canadian Musicians vs. Canadian Recording Industry Spokesperson

2009-11-14T19:14:57-00:00

The government continues to play catch-up with the copyright consultation submissions (my submission appeared on Friday). It has just posted two interesting contrasting submissions: the Canadian Music Creators Coalition, actual Canadian musicians who warn against DMCA-style reforms and Don Hogarth, CRIA's communication person, who warns against people who warn against DMCA-style reforms.

JuristBlogger Community Feed

Revamping Philadelphia’s Tax System

Why Didn’t the Federal Government Even Try to Argue the Commerce Clause in its Supreme Court Brief in United States v. Comstock?

Links for 2009-10-27 [del.icio.us]

Can Obama accept the Nobel Prize without congressional consent?

Precedential No. 43: TTAB Enters Partial Summary Judgment in 2(d) "VUDU" Opposition

Our Own Orin Kerr Cited Five Times by Tenth Circuit Decision

Louis Brandeis and the Incorporation Doctrine

Benefits and costs: crime, crime avoidance, crime control

Fourth Amendment Rights in a Storage Unit Obtained Using a Stolen Identity

FBI Arrests Two Men for Allegedly Conspiring To Attack Danish Newspaper That Published the Mohammed Cartoons, the Newspaper Editor, and one of the Cartoonists

More on “[T]he Islamic Fundamentalist Charge That ... the U.S.A. ... Is the ‘Great Satan’ Is Not Without an Element of Truth”

Google Wave Invitations and Audience Questions for Podcast

Born to Run - The Live Version

Why Aren’t Bad Prosecutors Held Accountable?

Yglesias at JStreet

Who is behind today’s anti-banker demonstrations? The usual suspects

minilinks for 2009-10-27

Paul Caron on Drivers of Law School Cost from GAO Report

Law school on the &quot;Block Plan&quot;

“[T]he Islamic Fundamentalist Charge That ... the U.S.A. ... Is the ‘Great Satan’ Is Not Without an Element of Truth”

Scientology Faces Judgment in France...

Legal Scholarship in the Internet Age

Slowing Down RCEs and Lengthening the Patent Term

Illegal to “Vilify” Religion (in a European Union Member, No Less)

Should Lawyers Check Their Blackberries hourly?

'Hall of Shame' Calls Out Bogus Internet Censorship

Masterpieces of the Universe

Good News: You’re Making Less Money

typetext

Reply to Henry Farrell, Part II

McDonald’s Out of Iceland

Another MSM Mention

Blawg of the Day - New Jersey Law for Special Needs Children

Will The Liberals Play The Role of Opposition on Lawful Access?

District Court Suppresses Contents of E-Mail Account in Bear Stearns Trial

TTAB Chief Judge J. David Sams to Step Down November 1st

Links for 2009-10-26 [del.icio.us]

ICANN Contract Compliance Statistics

Study Finds Canadian C-61 Anti-Circumvention Provisions Unconstitutional

CRTC Posts Updated Stats on Do-Not-Call

Legislative Summary of Bill C-47

Does a Reference's Priority Claim to a Provisional Application Alter its 102(e) Prior Art Date?

Happy Pro Bono Week

Puzzling Suppression Decision in Email Search Case

Positive feedback and strategic enforcement

True twit

Angels in the Backfield

A Response to Delahunty’s “The Fourth Amendment Goes to War”

Evan Brown gets a gig

“Social media and the legal community”

MasterCard card. Card card. Card.

This Is Why I Don&apos;t Do The ICANN Reading For The First Two Years Of A Process

Court upholds eBay forum selection clause

Booker's Children: The Strange Segregationist Origins of Diversity?

More Great Publicity for the Miami Law Foreclosure Fellowships

Client Service Is Hard.

Market Discipline? What Market Discipline?

When Pusher Comes To Shove

Federal Circuit Proposed Changes to Rules of Practice

Rifqa Bary — the 17-Year-Old Convert from Islam to Christianity — Ordered Back to Ohio, But to a Foster Family:

The Truth on the Merger Guidelines

Bloggingheads, cont’d.

Discount for Marketing Strategies Conference

They Judged the Cartoons, but Did Not Read the Book

Disenchanted with the New Facebook?

Law Firm Marketing Strategies Conference

U.S. News Surveys Out; Info Available Here

ODR Cyberweek Starts Today

Tracking the Use of Continuations

How Can Asking Questions Improve Tax and Spending Policies?

More on partisan media

typetext

Precedential No 42: TTAB Denies Fraud Summary Judgment Motion Due to Inadequate Pleading of Claim

Blawg of the Day - eDiscovery 101

Making Legislative History for Law Review Purposes

Links for 2009-10-25 [del.icio.us]

Net Neutrality in Canada Still a Work in Progress

How to Have Less Crime and Less Punishment

Should Israel Attack Iran?

Law school on the "Block Plan"

This Is Why I Don't Do The ICANN Reading For The First Two Years Of A Process