The Volokh Conspiracy

“Confront and Conceal”: New Stuxnet Revelations

2012-06-01T10:40:32Z

Despite serious concerns about the damage that these leaks will do to national security, I confess to being fascinated by the New York Times’s compelling and highly plausible account of the Stuxnet worm’s origins. Drawn from a book due to come out next week, the article says that Stuxnet originated in the Bush Administration, was expanded greatly by the Obama Administration, and was run jointly by US and Israeli agencies.

Highlights of the article include:

an account of US agencies building a replica of Natanz with abandoned Libyan centrifuges, then spreading the rubble of a worm-wrecked centrifuge on the Situation Room table (that sure sounds like intelligence community showmanship)
an official’s explanation of how the worm infiltrated the highly secure Natanz network (““It turns out there is always an idiot around who doesn’t think much about the thumb drive in their hand”) and
the all-too-familiar finger-pointing when a coding error let Stuxnet escape into the wild and begin infecting computers around the world (“It’s got to be the Israelis,” Vice President Biden reportedly fumed. “They went too far.”)

That’s just a few of the many vignettes in the story; more at the link.

Can A Judge Order Individuals to Consent to Facebook Disclosing Their Status Updates?

2012-06-01T15:21:48Z

This issue arose in Juror Number One v. Superior Court, handed down yesterday by the California Court of Appeal, Third District. Because the facts of the case are likely to recur, and they involve a statute I have written a lot about, I thought I would blog my thoughts on the case.

The case involves an investigation into juror misconduct. Exactly what happened is kind of murky, but here’s what I can piece together. During a two-month trial, the jurors were told that they couldn’t discuss the case with anyone. Despite this, one of the jurors — call him “Juror Number One” — posted status updates during the trial that were somewhat related to the case. Juror Number One had “friended” some of the other jurors, and they had access to the status updates, too. The losing party in the trial later found out about the status updates, and somehow obtained copies of what it thought were a complete set of status updates. The trial judge held a hearing and determined that based on the known status updates, there was no prejudice to the trial from the messages. The problem was that no one knew if this was the complete set of status updates. There may have been other status updates that were prejudicial but that weren’t part of the set that the losing party had obtained.

Yesterday’s decision arose in the course of trying to find the complete set of status updates. The losing party at the trial issued two subpoenas to try to get full copies of the postings. The first subpoena was to Facebook, and the second was to Juror Number One. Facebook moved to quash the subpoena on grounds that the subpoena violated the Stored Communications Act, and instead told the judge that the losing party had to subpoena the juror directly. Juror Number One moved to quash the second subpoena on grounds that it was overbroad. The trial judge did not rule on the subpoena to Facebook but quashed the subpoena to the juror on overbreadth grounds. The trial judge then decided that the best way to proceed was to order the juror to sign a consent form that consented to Facebook disclosing the juror’s relevant posting to the judge for in camera review. The idea is that the juror will be forced to consent to Facebook disclosing all the updates, and then the judge can review the full set of updates independently to determine if they were prejudicial. Juror Number One has objected to this procedure and in this appeal is arguing (primarily) that the consent order violated the Stored Communications Act, 18 U.S.C. 2701-11.

In the opinion, the court ruled that the Stored Communications Act did not bar the consent order because the consent order is being served on the juror, not Facebook. Although the Stored Communications Act limits efforts to compel Facebook to disclose evidence, the opinion reasons, that is not what is happening here: The court is effectively compelling the juror to disclose evidence, not compelling Facebook to disclose evidence. Granted, the court is compelling the juror to disclose evidence by forcing the juror to consent to Facebook disclosing evidence, but that’s basically the same thing. In a concurring opinion, Judge Mauro notes that this is tough issue: The SCA bars the court from getting the information directly from Facebook, and here the court is trying to do indirectly what it cannot do directly.

This is a puzzling case, I think. First off, I think it’s probably the case that status updates are covered by the Stored Communications Act. It’s an awkward fit, but on the whole I think the best characterization is that Facebook provides remote computing services with respect to storing status updates for users. As a result, the SCA generally applies to efforts to obtain status updates from Facebook. The next question is whether this particular way to obtain information from Facebook is legal. This is somewhat complicated. On one hand, I suppose it’s true that ordering a person to sign a consent form does not directly violate the Stored Communications Act. The statute limits when the government can compel content from Facebook, and also when Facebook can voluntarily disclose content to either the government or private parties. But it does not directly control whether courts can compel consent forms to be signed.

The problem is that I don’t think the signed consent form has any legal effect under the statute. Without valid consent, Facebook is not permitted to disclose the status updates under 18 U.S.C. 2702. Consent allows Facebook to disclose the status updates if it chooses to, but does not require Facebook to do so. But here the court is compelling the juror to consent. It is a basic principle that compelled consent is not valid consent. You can’t put a gun to someone’s head, make them sign a consent form, and then hold up the consent form as valid. The court’s order strikes me as analogous to putting a gun to the juror’s head: The juror has to sign the consent form or else he will be held in civil or criminal contempt and possibly jailed. That’s not consent; it is compulsion. Because there is no voluntary consent, Facebook should not be allowed to disclose the status updates.

My sense, then, is that the trial court’s order is quite inappropriate. In effect, the court is trying to trick Facebook into inadvertently violating the SCA by making Facebook think that there is consent that allows Facebook to disclose the updates lawfully. If Facebook’s lawyers catch on, they will realize that this consent is invalid and should refuse to disclose the status updates to the court. But depending on how this is presented to Facebook, the folks at Facebook may not realize that the consent is invalid. Under the good-faith exception to civil liability, Facebook would probably escape civil liability in that situation. But the trial court should not be putting Facebook in this position anyway: Assuming that executing a scheme to have a party unknowingly violate the SCA violates the statute, then this would seem to violate the SCA. And even if executing such a scheme does not technically violate the statute directly, surely it is inappropriate for a judge to do such a thing.

What other options does the court have? The most obvious possibility is that the court should allow the losing party to subpoena the juror for all of the status updates during the relevant period that are relevant to the trial. The solution isn’t perfect. The juror might not comply with the subpoena, for example. But the Stored Communications Act limits compelled access to contents of communications directly from providers, and there does not appear to be an exception that applies here.

Thanks to How Appealing and co-blogger Eugene V. for the link.

Anatomy of a Murder Trailer

2012-06-01T02:23:19Z

My favorite lawyer’s movie is Anatomy of a Murder. Here is the very interesting trailer for the film (which I posted here about 2 years ago).

I have seen this film more times than I can count and highly recommend it to future lawyers. The screenplay is based on a novel by a Michigan state supreme court justice using the pseudonym Robert Travers (and who appears in the trailer!), which was based on a real life incident in the Upper Peninsula of Michigan. The film was shot on location in Michigan, and features a sound track by Duke Ellington (who has a cameo in the film).

It was way ahead of its time and, even today it captures what it is like to try a big murder case.

The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today

2012-05-31T18:38:47Z

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.

Also recently published in SSRN is a very good draft article by David Hardy, analyzing the four opinions in McDonald v. Chicago. As he persuasively shows, the arguments by Justice Stevens and Breyer against enforcing the Right to Keep and Bear Arms against the states would, if taken seriously, cast serious doubt on the legitimacy of enforcing against the states almost everything else in the Bill of Rights.

Andrew Koppelman on the Origins of the Case Against the Individual Mandate

2012-05-31T21:23:35Z

Northwestern University Law Professor Andrew Koppelman has an article in Salon on the origins of the case against the individual mandate, in which he tries to show that Democrats could not reasonably have anticipated that the mandate would run into legal problems, and therefore cannot be blamed for not being more careful in the way they drafted the law.

There are several flaws in the article. Perhaps the biggest one is that, even on Koppelman’s own account, by the time the law was enacted in March 2010, several leading scholars had raised constitutional objections to it, including the VC’s own Randy Barnett and David Kopel. So too did a number of state governments and members of Congress. Moreover, according to a recent book by investigative reporter Ron Suskind, President Obama himself worried that the mandate would be vulnerable to legal challenges, even before it was enacted. Thus, the mandate’s legal troubles were not only foreseeable, but at least in part actually were foreseen by the president, who chose to go with the mandate despite the possible legal risk.

I may write a more detailed comment on the article later. For now, I would like to correct a mistake related to me personally. Koppelman writes:

On August 22, [2009] David Rivkin and Lee Casey wrote a Washington Post op-ed declaring that “[t]he federal government does not have the power to regulate Americans simply because they are there.” There were some follow-up posts on Volokh Conspiracy by Jonathan Adler and Ilya Somin, both of whom reluctantly concluded that the bill was clearly authorized by current law. (Both later changed their minds and will now tell you that the mandate is obviously unconstitutional!)

Unfortunately for Koppelman, I have never said that “the mandate is obviously unconstitutional.” Rather, I have repeatedly written that the issue is a close case on which both sides have some good arguments, although I think the anti-mandate argument is ultimately superior and should prevail. I even wrote a post entitled “The Individual Mandate Case is Not Easy,” which explains my view on this in some detail:

I do not mean to suggest that there isn’t a substantial case in favor of the constitutionality of the mandate. Some of the law’s defenders have made serious and insightful arguments on its behalf… The Supreme Court’s precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.

Jonathan Adler has also never said that the issue is an obvious one. It is, rather, some of our opponents who have weakened their position by implausibly asserting that the case in favor of the mandate is obviously correct.

It’s also worth noting that in the September 2009 post that Koppelman cites, I emphasized my view that the not-yet-enacted mandate would be unconstitutional. I was merely pessimistic about the prospects of winning in court because I thought it would run counter to the Court’s earlier decision in Gonzales v. Raich, which I had always strongly opposed. Later, I was persuaded by Randy Barnett’s December 2009 analysis, and my own re-reading of Raich with the mandate issue in mind, that Raich does not cover the present case. I explained the reasons for that shift here.

First Circuit Unanimously Strikes Down DOMA Section 3

2012-05-31T16:47:13Z

The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and (2) intruded on the historic role of the states in defining marriage. None of the asserted congressional interests, like favoring families headed by biological parents, justified the discrimination in the statute since state law determined who could form such families through adoption and custody rules. In what appears to be a novel approach, the First Circuit opinion combined the equal protection decisions of Romer, Moreno, and Cleburne, with some of the Court’s recent federalism decisions limiting the scope of federal power over the states. The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971). The panel’s opinion won’t be the last word on DOMA, to be sure. The congressional Legal Advisory Group defending DOMA, headed by Paul Clement, has the option of seeking en banc review or heading straight to the Supreme Court.

Asian-Americans, Affirmative Action, and Fisher v. Texas

2012-06-01T07:29:56Z

The Chronicle of Higher Education reports that several Asian-American groups have filed an amicus brief opposing the University of Texas’ affirmative action program, which is being challenged in Fisher v. Texas, an important affirmative action case before the Supreme Court:

A brief filed Tuesday with the U.S. Supreme Court seeks to shake up the legal and political calculus of a case that could determine the constitutionality of programs in which colleges consider the race or ethnicity of applicants. In the brief, four Asian-American organizations call on the justices to bar all race-conscious admissions decisions, arguing that race-neutral policies are the only way for Asian-American applicants to get a fair shake.

Much of the discussion of the case has focused on policies that help black and Latino applicants. And the suit that has reached the U.S. Supreme Court was filed on behalf of a white woman, Abigail Fisher, who was rejected by the University of Texas at Austin.

But the new brief, along with one recently filed on behalf of Fisher, say that the policy at Texas and similar policies elsewhere hurt Asian-American applicants, not just white applicants. This view runs counter to the opinion of many Asian-American groups that have consistently backed affirmative action programs such as those in place at Texas….

The brief filed Tuesday on behalf of Asian-American groups Tuesday focused less on the Texas admissions policy than on the consideration of race generally in college admissions. “Admission to the nation’s top universities and colleges is a zero-sum proposition. As aspiring applicants capable of graduating from these institutions outnumber available seats, the utilization of race as a ‘plus factor’ for some inexorably applies race as a ‘minus factor’ against those on the other side of the equation. Particularly hard-hit are Asian-American students, who demonstrate academic excellence at disproportionately high rates but often find the value of their work discounted on account of either their race, or nebulous criteria alluding to it,” says the brief…

The brief focuses heavily on research studies such as the work that produced the 2009 book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life (Princeton University Press)….

The book suggested that private institutions essentially admit black students with SAT scores 310 points below those of comparable white students. And the book argued that Asian-American applicants need SAT scores 140 points higher than those of white students to stand the same chances of admission. The brief also quotes from accounts of guidance counselors and others (including this account in Inside Higher Ed) talking about widely held beliefs in high schools with many Asian-American students that they must have higher academic credentials than all others to gain admission to elite institutions…

The impact of Texas’ affirmative action policy on Asian-American applicants raises serious questions about what the purpose of affirmative action actually is. As I have pointed out previously, if the goal is compensatory justice for groups that have been victimized by government discrimination, Asian-Americans have a strong case for being included in the program, and certainly should not be victimized by it. If, as the University of Texas argues, the purpose is ensuring that each group has a “critical mass” large enough to promote educationally beneficial “diversity,” then it is hard to understand why the Texas policy extends affirmative preferences to Hispanics, but not Asians, even though the former have a much larger absolute presence at the school:

The brief filed on behalf of [plaintiff Abigail] Fisher does focus on Texas policies — and specifically their impact on Asian-American applicants. Texas has stated that it considers black and Latino students “under-represented” at the university, based in part on their proportions in the state population. And the Fisher brief considers that illegal.

“UT’s differing treatment of Asian Americans and other minorities based on each group’s proportion of Texas’s population illustrates why demographic balancing is constitutionally illegitimate…. UT gives no admissions preference to Asian Americans even though ‘the gross number of Hispanic students attending UT exceeds the gross number of Asian-American students attending UT.’ This differing treatment of racial minorities based solely on demographics provides clear evidence that UT’s conception of critical mass is not tethered to the ‘educational benefits of a diverse student body.’ UT has not (and indeed cannot) offer any coherent explanation for why fewer Asian Americans than Hispanics are needed to achieve the educational benefits of diversity.”

As I explain here, there is also no diversity-based reason to prefer Hispanics to a wide range of other groups that have lesser representation at UT, or to consider Asian-Americans as a single undifferentiated mass for diversity purposes:

“Asians” are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are “Europeans.” If diversity is really the goal, university administrators should do away with the artificial “Asian-American” category altogether and start considering each group separately. They should do the same for the many groups usually lumped together as “white” or “Hispanic.” A university that already has a critical mass of native-born-WASPS might well not have a critical mass of Utah Mormons or Eastern European immigrants.

The glaring inconsistencies in Texas’ affirmative action policy and others like it suggest that many universities are either operating an ethnic spoils system, trying to run a compensatory justice program under the guise of promoting diversity (while ignoring Chinese and Japanese-Americans’ powerful claims for compensation) in order to avoid running afoul of Supreme Court precedent, or some of both.

To avoid misunderstanding, I should reiterate that I have some sympathy for the compensatory justice rationale for affirmative action, and do not believe that such policies are categorically unconstitutional. I also have significant reservations about the Fisher case in particular. My general position is the exact opposite of current Supreme Court precedent, which holds that racial preferences can be used to promote “diversity” but not compensatory justice for minority groups that have been the victims of massive “societal” discrimination.

That said, many current affirmative action policies are a travesty from the standpoint of either compensatory justice or promoting diversity. The University of Texas policy is no exception.

UPDATE: Some have suggested to me that UT’s policy may also be motivated by a belief that GPA and test score admissions standards are more “culturally biased” against blacks and Hispanics than against Asians. To my knowledge, the University has not asserted any such justification for its policy of including blacks and Hispanics, but not Asian-Americans in its affirmative action program. In any event, it would be surprising if administrators really believed that the tests are more culturally biased against native-born blacks and Hispanics – including those from middle class backgrounds- than against recent Asian immigrants who come from very different cultures, and in some cases only recently became fluent in English.

Annals of the One Percent

2012-05-31T13:50:52Z

I understand that Elizabeth Warren claims to have inspired the Occupy movement.

In that spirit, it’s worth noting that when the 99% living in the Boston area claim minority status for employment purposes based on family lore, an old photograph, and other dubious bases, they get fired. When the 1% do it, they get a bit of bad publicity.

So Now We Know Where Penn and Harvard Got the Idea that Elizabeth Warren was Native American

2012-05-31T13:32:04Z

from her:

Elizabeth Warren admitted on Wednesday night for the first time that she told Harvard University and the University of Pennsylvania of her Native American heritage — in contrast to her previous claim that she was unaware Harvard had listed her as a minority professor until recently.

The Democratic Massachusetts Senate candidate told the Boston Globe, “At some point after I was hired by them, I … provided that information to the University of Pennsylvania and Harvard.”

So it turns out that only reason that she identified as Native American wasn’t so she could find people with whom to have lunch? Stalinists everywhere are shocked. (I note as an aside, that even her supporters apparently never even believed that argument, conjuring up convoluted alternative theories that really only had one basic problem–that they weren’t actually what she said. Which always struck me as sort of odd that they would defend her so vociferously when even they didn’t believe her story.)

I realize that apparently only Stalinists and right-wing crazies are concerned about the legal and ethical issues raised by the nation’s most prominent law professor and law school filing inaccurate EEOC reports. But on the off-chance that others might be, the relevant standard for identifying oneself as Native American is “a person having origins in any of the original peoples of North America and who maintains cultural identification through tribal affiliation or community recognition.’’ Based on available information Warren fits neither of these criteria. To the best of my knowledge she does not claim that she qualified under either of these criteria or provided any evidence that she does. And if any supporting evidence was going to come out obviously it would have done so by now.

Oddly, though, Warren also reasserted that she is ”she is ‘proud’ of her Native American heritage, which she said is a ‘part of who I am.’” Except, of course, it isn’t actually part of who she is. And, in my opinion, it seems awfully patronizing to real Cherokees that she insists on continuing to wear this false identity like it is some sort of trinket to show off and make her seem more interesting or something. No wonder they are getting increasingly incensed–I’m sure I would feel the same way were I in their position. I honestly don’t get why she doesn’t just come clean and apologize, as David Cornsilk suggests, and say something like, “Look, this was a family story that got out of hand. I admire the Cherokee people and their history. But it was wrong for me to have claimed Cherokee heritage and while I meant no disrespect I understand now that my actions were disrespectful to real Cherokees.” For what it is worth, I think Penn and Harvard should do the same and correct their relevant records too. But, in my personal opinion, it is just wrong and insulting to real Cherokees to continue to insist that being Cherokee is part of who she is and to think that somehow that the Cherokee people will be flattered or honored because she wants to claim them for some reason. As they note, “it isn’t who you claim, but instead, who claims you. We don’t claim you.” Well said. Really, enough is enough already.

How Four Jewish Butchers Brought Down the New Deal

2012-05-31T13:17:47Z

An interesting article by Steve Horwitz, written for laypeople, on the Schechter Poultry case.

White House announces private sector botnet initiative

2012-05-31T01:32:13Z

Showing the power of the bully pulpit, the White House today announced a pilot program in which ISPs will share data about botnets with financial institutions. ISPs also announced a set of principles for fighting botnets.

This is a good thing. If your computer belongs to a botnet, you shouldn’t be engaged in online banking. And if your ISP knows you’ve been botted, it should tell your bank so you don’t become the victim of cyberthieves.

But why does it take a White House initiative to get this done?

Beats me. It’s a purely private exchange; the government can’t join the information sharing loop because an overbroad privacy provision in current law punishes ISPs who share information about customers, even botted customers, with the government.

That ACLU gift to hackers is still on the books, and the Obama administration’s threat to veto information sharing bills like CISPA makes it more likely the provision will stay there. So despite this initiative, when a botted customer tries to file tax returns or other confidential information with the government, the IRS — unlike the banks — won’t be able to warn him that his machine is compromised.

Under current law, all the government could do was applaud the sharing, not participate in it. So that’s what it did.

Irish Scientists Solve Stout Mystery

2012-05-31T01:17:14Z

Irish mathematicians have reportedly determined why the bubbles in a pint of Guinness appear to sink. The answer, apparently, lies in the circulation of liquid within the glass. (Hat tip: Instapundit)

House Republicans’ Anti-Market, Anti-Environmental Fishery Policy

2012-05-30T23:46:22Z

There is substantial theoretical and empirical evidence that property-based management schemes, such as catch-shares, prevent fishery collapse and ensure sustainability. The creation of property rights in ecological resources is also a principled conservative alternative to centralized regulation. Yet somehow a majority of House Republicans were bamboozled into voting to bar funding for further implementation of catch share funding along the Atlantic Coast and in the Gulf of Mexico. By supporting this amendment, offered by Reps. Steve Southerland (R-FL) and Ryan Grimm (R-NY), and endorsed by Rep. Barney Frank (D-MA), a majority of House Republicans managed to oppose property rights, market-based reforms, and environmental protection all at once. Actions like this give credence to the notion that some Republicans are more anti-environment than they are pro-market or anti-regulation.

Ronald Bailey has more here.

The Washingtonian on the Cato vs. Koch Conflict

2012-05-31T19:18:47Z

The Washingtonian just published a detailed article on the Koch brothers lawsuit seeking to take control of the Cato Institute:

Since its founding in 1977, Cato has evolved from a band of roguish scholars to a first-tier Washington think tank that cuts across party lines to further its libertarian agenda….

its work has helped make once-heretical libertarian positions such as legalizing gay marriage and decriminalizing marijuana more credible.

“Cato has made the case that libertarians aren’t just a bunch of pot-smoking weirdos,” says Martin Wooster, an expert on foundations and a senior fellow at the Capital Research Center. “It has helped make libertarianism a respectable public-policy position….”

Cato staffers were terrified that Koch would turn their beloved think tank into a factory for GOP talking points. “We fear that a Koch takeover would change our mission from one of winning hearts and minds for the libertarian cause over the long run to one of winning elections and legislative battles for the conservative movement in the short run,” says Jerry Taylor, a Cato senior fellow.

Crane issued a statement shortly after the lawsuit was filed: “We view Mr. Koch’s actions as an attempt at a hostile takeover and intend to fight it vehemently.”

The outbreak of civil war at Cato stunned Washington. Libertarian bloggers expressed outrage; Cato staffers pledged to resign…..

Behind the scenes …. the relationship between [Cato President Ed] Crane and Koch had been souring for years. Personal acrimony—over Koch’s management philosophy and Crane’s handling of a conference in Moscow—led in the early 1990s to the breakup of their friendship.

My own view of this dispute is the same as it was at the very beginning:

I completely agree with co-blogger Jonathan Adler’s comments on the Koch brothers’ lawsuit against the Cato Institute. I don’t know whether the Kochs’ legal rights have been violated or not. If they have, I can understand their frustration. But, for the reasons Jonathan explains, this lawsuit – even if meritorious – can only do damage to the Cato Institute and the broader libertarian cause which the Kochs have supported for many years.

Cato is the nation’s most prominent libertarian think tank. For both public relations and substantive reasons, it is unwise for it to be controlled by members of one family, whether the Kochs or any other. The public relations problem is obvious. The substantive problem is that such a setup increases the chance that the organization will develop blindspots that might have been avoided with more diverse leadership….

Most likely, the Kochs genuinely believe they have been wronged and that they could run the Institute better than its current leaders. But not every well-intentioned action is wise, and this one isn’t.

In later posts, I explained why it is not inconsistent for libertarians to adopt a position like mine on this dispute, and also suggested a possible way to reduce the damage caused by the conflict.

The information in the Washingtonian article largely confirms my view that the Koch lawsuit is likely to do far more harm than good, regardless of its legal merits. If the Kochs prevail, they will acquire an asset that has lost much of its reputation, as well as many of its best scholars. That is unlikely to benefit either Cato or the Kochs. And it certainly doesn’t do anything for the cause of libertarianism.

The legal issues in the case are complex and disputable. It’s possible the Kochs are in the right. But there are times when when we should refrain from asserting even a genuine legal right, and this is one such case.

I don’t agree with everything the Washingtonian article says. For example, I’m not convinced that Charles Koch has become a “conservative activist” as opposed to merely believing that current political realities require an alliance between libertarians and conservatives. Libertarians who favor the opposite course of action – a “liberaltarian” alliance with liberals – do not thereby become liberals themselves. The same point applies to Charles Koch’s efforts to build coalitions with conservatives. The Kochs have long supported many causes that most conservatives oppose, and continue to do so.

But even if the Kochs are no less libertarian than Cato’s current leadership, their lawsuit is likely to cause more harm than good. I regret that the dispute has dragged on for so long, and hope that it will end soon. It is not too late for the Kochs to drop their lawsuit or accept some sort of compromise that leaves Cato intact.

NOTE: I described my ties to the two sides in the Cato vs. Koch conflict here.

“Hopefully”

2012-05-30T19:29:22Z

Prof. Geoff Nunberg (Language Log) has an excellent NPR “Fresh Air” item about the unfounded condemnation of “hopefully” as a sentence adverb. An excerpt:

That floating hopefully had been around for more than thirty years in respectable venues when a clutch of usage critics including Theodore Bernstein and E. B. White came down on it hard in the 1960’s. Writers who had been using it up to then said their mea culpas and pledged to forswear it. Its detractors were operatic in their vilifications. The poet Phyllis McGinley called it an abomination and said its adherents should be lynched, and the historian T. Harry Williams went so far as to pronounce it “the most horrible usage of our times” ….

You wouldn’t want to take the critics’ hysteria at face value. A usage can be really, really irritating, but that’s as far as it goes. You hear people saying that a misused “hopefully” or “literally” makes them want to put their shoe through the television screen, but nobody ever actually does that — what it really makes them want to do is tell you how they wanted to put a shoe through the television screen. It’s all for display, like rhesus monkeys baring their teeth and pounding the ground with their palms.

Of course even if you find the tone of these complaints histrionic, you can often sympathize with their substance. I feel a crepuscular wistfulness when I hear people confusing “enormity” with “enormousness” or “disinterested” with “uninterested.” It doesn’t herald the decline of the West, but it does signal another little unraveling of the threads of literary memory.

But the fixation with hopefully is different from those others…. [T]here’s no rational justification for condemning it. Some critics object that it’s a free-floating modifier (a Flying Dutchman adverb, James Kirkpatrick called it) that isn’t attached to the verb of the sentence but rather describes the speaker’s attitude. But floating modifiers are mother’s milk to English grammar — nobody objects to using “sadly,” “mercifully,” “thankfully” or “frankly” in exactly the same way.

Or people complain that “hopefully” doesn’t specifically indicate who’s doing the hoping. But neither does “it is to be hoped that,” which is the phrase that critics like Wilson Follett offer as a “natural” substitute. That’s what usage fetishism can drive you to — you cross out an adverb and replace it with a six-word impersonal passive construction and you tell yourself you’ve improved your writing.

Atlantic Guest Posts on Environmental Policy

2012-05-30T18:10:08Z

For the past ten days I’ve been one of the guest bloggers on Megan McArdle’s blog on The Atlantic‘s website. During this time I’ve written five posts on environmental policy. Here they are:

- Property Rights and the Tragedy of the Commons

- Property Rights and Fishery Conservation

- How Property Rights Could Help Save the Environment

- Is Washington, D.C., Really the Environment’s Savior?

- A Conservative’s Approach to Combating Climate Change

I didn’t get to choose all the titles, but the content’s all mine — for better or worse.

Economic Freedom and Tolerance

2012-05-30T18:03:34Z

I just came across what looks like a very interesting paper on SSRN, “Does Economic Freedom Foster Tolerance?” Here’s the abstract:

Tolerance has the potential to affect both economic growth and wellbeing. It is therefore important to discern its determinants. We add to the literature by investigating whether the degree to which economic institutions and policies are market-oriented is related to different measures of tolerance. Regression analysis of up to 65 countries reveals that economic freedom is positively related to tolerance towards homosexuals, especially in the longer run, while tolerance towards people of a different race and a willingness to teach kids tolerance are not strongly affected by how free markets are. Stable monetary policy and outcomes is the area of economic freedom most consistently associated with greater tolerance, but the quality of the legal system seems to matter as well. We furthermore find indications of a causal relationship and of social trust playing a role as a mechanism in the relationship between economic freedom and tolerance and as an important catalyst: the more trust in society, the more positive the effect of economic freedom on tolerance.

Apparently Dean Clark Wasn’t Harvard’s Native American

2012-05-30T17:06:03Z

As noted in the Boston Globe last week, it appears that Harvard may have run afoul of federal regulations in apparently identifying Elizabeth Warren as a Native American. Whatever the full story, it appears that Dean Robert Clark was not the unidentified Native American on the Harvard faculty according to an interview in this story:

As to her claims to Native American heritage, Clark noted:

When I learned of it from her, I thought it was an interesting side note, because my own family lore through my grandfather was that we had a Choctaw ancestor in my own family. But I never verified it and did not claim minority status. A few years later, around 1996 or 1997, I made an offhand comment in an informal get-together with a Native American student group about this Choctaw family lore. Eventually a law school administrator asked me if I wished to list myself as Native American in some of our EEOC reports, but I politely declined. It was just family lore, and more importantly, I had no identification whatsoever with the Choctaw community.

As the same reporter noted last week, Warren also allowed herself to be identified as a “woman of color” in an article in the Harvard Women’s Law Journal which states that those listed were contacted and given an opportunity to opt out.

Finally, it appears that some Cherokees are none too pleased about all this.

John McGinnis on the Great Harold Berman

2012-05-30T16:06:13Z

In my opinion (seemingly shared by virtually anyone else who has read his work), Harold Berman is one of the truly great legal thinkers of the 20th century and Law and Revolution is one of the great masterpieces of legal scholarship. Berman has been one of my two most significant intellectual influences, along with Hayek. You can see his influence here and here and you can see my effort to combine the thoughts of the two of them here. Unfortunately, my impression is that Berman is largely unknown to most.

John McGinnis has a post (the first of a series) on the Law and Liberty website on Berman. Check it out. This one is short but you’ll want to follow the series.

Addressing “Extremer Extremists”

2012-05-30T16:12:48Z

Like many of the other bloggers and readers here at the VC, I hold many extreme political views – “extreme” in the sense that they are distant from those of most of the general public. I’m probably among the most libertarian 1-2 percent of the American population. On the other hand, there are clearly libertarians out there who are more extreme than I am. They favor an even smaller role for government or would abolish the state entirely. Some also diverge from majority opinion more than I do in other ways. Why do I disagree with “extremists” who are even more extreme than I am?

Economist Bryan Caplan has an interesting post devoted to that kind of question:

I’m an extremist. I freely admit it….

Still, no matter how extreme you are, there are almost always people on “your side” who are even more extreme than you are…. [Y]ou probably spend a lot more time attacking those who don’t take your views far enough rather those who take them too far. But the fact that there are people more extreme than you is revealing. You must think there’s some reason why it’s wrong to be any more extreme than you are.

My question: What precisely are those reasons?

The most obvious umbrella responses:

1. Public relations. Views more extreme than your own are counter-productive because they alienate the moderates you need to convince to get better results.

2. Transition costs. While you agree with the extremer extremists about the ultimate goal, they underrate the transition costs of getting from here to there….

3. Latent pluralism. Despite your often one-sided rhetoric and disdain for the “other side(s),” they actually make some valid points; they just overstate them. Thus, even if you habitually dismiss the view that statist policies give bad incentives, you might ultimately agree that your policies would provide disturbingly bad incentives if they were pushed further than you advocate. Picture a socialist who opposes a 100% marginal tax rate….

4. Papered-over fundamental differences. Even if you psychologically and sociologically identify with your extremer extremists, you don’t philosophically identify with them. They’re just fellow travelers who fail to grasp the principles that really count….

Bryan’s point 1 isn’t really a reason to reject the more extreme view. At most, it’s a justification for not revealing that you hold that position, in order to avoid alienating moderates. A genuine “extremer extremist” can still choose to seem more moderate than he really is for public relations reasons. In any event, I don’t soft-pedal the substance of my views on issues I regularly write about for the sake of attracting moderates, though I am very conscious of this issue when it comes to questions of style. I might act differently if I were running for public office or gunning for a judgeship. But fortunately I’m not.

Point 2 is potentially significant. There are various government programs whose creation I consider to be unjustified that I would not abolish immediately, because of reliance interests. In most such cases, however, I would still want to abolish them gradually rather than leave them in place permanently. So this is not really a big area of disagreement between me and more extreme libertarians.

The fourth point is a bigger issue for me. Many of the libertarians who are more extreme than I am believe in absolute property rights, whereas I do not. I think utilitarian considerations matter also, and individual rights (including property rights) can sometimes legitimately be sacrificed if there is a large enough utilitarian benefit. However, some libertarians who are more extreme than I am actually hold very similar fundamental values. Economist David Friedman and Bryan Caplan himself are good examples. Both of them also reject absolute rights and are partial utilitarians.

The really big factor for me is ultimately point 3, “latent pluralism.” There are a few market failures (mostly certain public goods problems) that I think private sector institutions can’t handle, while government has at least a reasonable chance of doing better. I think liberals and conservatives (to say nothing of socialists) greatly overstate the frequency of such examples. But I believe they are correct about a small but important set of cases. I’m familiar with the more extreme libertarian and anarchist literature arguing otherwise, some of which makes excellent points. But I don’t find it fully convincing.

I plead guilty to spending much more time criticizing views that are less libertarian than mine than those which are even more so. Bryan suggests this is a result of “my-side” bias. Perhaps so. But it’s also because libertarians more extreme than me are fairly rare and have very little influence. If I lived in a much more libertarian society where my views were closer to the middle of the political spectrum, I would certainly devote more time to writing about libertarians who are more extreme than I am.

That said, I have in fact devoted a few posts to airing my differences with more extreme libertarians, such as here, here, and here. And here’s an audio of a debate on libertarianism and foreign policy between Bryan and myself, which addresses one major example.

UPDATE: In the initial version of this post, I accidentally forgot to include a link to Bryan’s post. I have now fixed that error.

Ted Cruz Forces a Runoff for the Texas GOP Senate Nomination

2012-05-30T05:41:29Z

Several of us VC bloggers have endorsed and/or supported Ted Cruz in his Texas Senate campaign. The news tonight from Texas is that Ted forced a runoff with David Dewhurst in the GOP primary: With 95% of precincts reporting, Dewhurst has 45% of the vote, Cruz 34%, and Tom Leppert 15%. Forcing the runoff is itself a huge accomplishment given that Dewhurst is such a well-known and wealthy candidate. Looking ahead, there will be a Dewhurst/Cruz runoff nine weeks from now to determine who gets the GOP nomination. As you might expect in Texas, whoever wins the GOP nomination is almost certain to become the next junior Senator.

One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking”

2012-05-30T04:21:37Z

The unfortunate situation involving the apparent arrest of Aaron Walker for blogging about the convicted bomber Brett Kimberlin leads me to post an early draft of my forthcoming Northwestern University Law Review article, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking”. It’s still a very early draft, with many footnotes still on the skeleton side; but it seems timely.

The article begins with a discussion of four cases where “criminal harassment” laws, “stalking” laws, or protective orders were used — (1) the prosecution of a candidate for city council (Philip Speulda) who distributed leaflets suggesting his opponent was homosexual, (2) the Renton Police Department’s attempt to use such a law to uncover the identity of someone who was publishing satirical YouTube cartoons related to the department, (3) an order barring a Berea, Ohio community activist from saying anything about the mayor’s sister (who held various civic positions), and (4) the prosecution of William Cassidy for his persistent Twitter criticism of a Buddhist leader — and then goes on:

A few decades ago, criminal “harassment” usually referred to telephone harassment — unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person, or trying to talk to that person. The same has historically been true with regard to restraining orders.

But, increasingly, these laws have been reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners; this is especially true with regard to recent proposals to ban “cyber-harassment” or “cyber-bullying.” And, as the examples given above show, such laws are indeed being used in precisely these ways.

Sometimes the laws are applied to speech about an ex-spouse or a neighbor, or about someone with whom one has had business dealings, but sometimes they are applied to speech about government officials. They could equally be applied to speech about media figures, university professors, businesspeople, and the like. The question is whether such laws and restraining orders are constitutional, when applied to speech that’s outside the traditional First Amendment exceptions (chiefly threats and “fighting words,” plus perhaps libel and other knowing falsehoods), and speech that is said about the target rather than just to the target. This article will argue that the answer is generally “no.”

Should Courts Only Strike Down Laws as Unconstitutional if “People of All Political Persuasions” Agree?

2012-06-01T09:20:40Z

In his most recent article defending the constitutionality of the individual mandate, Jeffrey Rosen claims that “[judicial] restraint requires deference to all laws passed by Congress and the states, regardless of whether they’re favored by liberals or conservatives, unless they violate principles that can be so clearly located in constitutional text and history that people of all political persuasions can readily accept them.”

It’s possible Rosen means only that a law should not be invalidated unless there it at least some support for doing so among “people of all political persuasions.” If so, the individual easily mandate qualifies. Polls show that a slight plurality of self-identified Democrats want the the Court to invalidate the law, and a few liberal organizations have even filed an amicus brief urging the Court to do so.

It’s also possible that Rosen means to suggest merely that a law should be struck down only if the Court has a rationale that “people of all political persuasions” could potentially embrace without giving up their broader ideological commitments, even if they don’t actually choose to do so. The case against the individual mandate qualifies on that basis too. There is no inherent inconsistency between being a liberal (or even a radical) and believing that the mandate is unconstitutional. If the Court were to strike it down, virtually all other existing federal regulatory laws would remain in place, and Congress would still have extensive authority to enact new ones.

More likely, however, Rosen means that courts should only invalidate laws if there is strong support for doing so across the political spectrum, not merely potential support, or a few outliers on one side supporting the vast majority of people on the other. By that test, the case against the individual mandate would fail. Most committed liberals clearly want the law to be upheld.

But such a test would also condemn numerous earlier Supreme Court decisions, including many strongly supported by liberals. Brown v. Board of Education definitely would not meet the standard. At the time it was decided and for years thereafter, Brown was denounced as illegitimate by most conservatives, and also by most southern Democrats (including many who were left-wing on economic issues, such as George Wallace and Robert Byrd). Even some prominent liberal jurists rejected the Court’s reasoning, such as Herbert Wechsler and Judge Learned Hand. The same goes for the Warren Court’s defendants’ rights decisions (rejected by most conservatives and many moderates), much of the last fifty years of Supreme Court Establishment Clause jurisprudence (ditto), and the Court’s more recent decisions protecting the rights of terrorism suspects detained at Guantanamo (most definitely, ditto). Rosen himself implies that Roe v. Wade flunks the test, as would a Supreme Court decision endorsing a constitutional right to gay marriage.

It’s possible that Rosen really does believe that all these cases were wrongly decided, as well as all others that struck down a law without the support of “people of all political persuasions.” If so, that’s a fairly radical conclusion.

Be that as it may, I suspect most other liberal defenders of the mandate would not agree with such a theory. Nor should they. Judicial enforcement of the Constitution is often most necessary precisely in cases where a violation of the Constitution enjoys substantial political support, which usually means endorsement by at least one side of the political spectrum. One of the reasons why we have constitutional restraints on government in the first place is to constrain the powers of political majorities.

Pitfalls of the Collective Action Theory of Constitutional Federalism

2012-05-30T16:34:28Z

Co-blogger Jonathan Adler points out several weaknesses in the collective action theory approach to interpreting constitutional federalism advocated by a number of academics, most notably Robert Cooter and Neil Siegel. The theory has been used as a tool for defending the constitutionality of the individual mandate, though I have argued that it may actually cut the other way because there is no collective action problem preventing individual states from enacting health insurance mandates of their own – at least not if the mandate has the beneficial effects that advocates ascribe to it.

Last year, I reviewed Cooter and Siegel’s excellent Stanford Law Review article on the subject for the Jotwell website. Although I called the article a major contribution to federalism scholarship, I also had several major reservations about their theory. Its most important flaws are that it doesn’t square with the text of the Constitution, and that it ignores the possibility that federal legislation can create collective action problems as well as solve them:

Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters….

Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them.

The Search for a Limiting Principle for Federal Power: Collective Action Problems

2012-05-30T01:18:07Z

Many of those who urge the Supreme Court to uphold the constitutionality of the individual mandate recognize that the Court is unlikely to take this step without identifying a “limiting principle” that cabins the scope of federal power in some meaningful way. While some deride the search for a limiting principle as unnecessary, others recognize that the Supreme Court has repeatedly reiterated the need for a limiting principle in its enumerated powers jurisprudence. In Gibbons v. Ogden, for exmaple, Chief Justice John Marshall noted that “the enumeration presupposes something not enumerated,” making clear that enumerated powers are necessarily limited powers. More recently, in United State v. Lopez, the Court rejected the government’s proffered justification for the Gun Free School Zones Act because it contained no such limiting principle. As Chief Justice Rehnquist explained, “if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

One of the more popular limiting principles proposed by progressive academics in support of the individual mandate is that the federal government is authorized to act where action is (or could be) necessary to solve a collective action problem among the states. As Jeffrey Rosen put it in his exchange with Randy, the Court could uphold the mandate and Congress would still be unable to regulate non-economic activity “where there are no collective action problems that make it impossible for the states to act on their own.” The case for a “collective action federalism” of this sort has been made at greater length by Neil Siegel and Robert Cooter in the Stanford Law Review, and by Professor Siegel on these pages.

The theory of collective-action federalism, particularly as articulated by Cooter and Siegel, is elegant and compelling. It outlines an internally coherent constitutional architecture that has much to recommend it. Yet it has one fundamental problem (in addition to those identified by Ilya below): The theory of collective-action federalism cannot provide a plausible account of the Court’s current federalism jurisprudence. Were the Supreme Court to uphold the individual mandate on these grounds, it would repudiate the rationales of several recent Supreme Court opinions, including some written by Justices Scalia and Kennedy.

The collective-action theory of the federal government’s enumerated powers seems plausible if one only looks at the Court’s recent Commerce Clause cases. On the one hand, neither Lopez nor Morrison dealt with the sort of problem beyond the capacity of state governments. Wickard and Raich, on the other hand, dealt with national markets in commodities that states could not effectively regulate (or so our federal representatives could have rationally concluded). So far so good, but his hardly exhausts the universe of enumerated powers cases.

Although the collective action theory of federalism may be able to account for Lopez and Morrison, it is utterly unable to account for New York v. United States or Printz v. United States. Both cases involved clear collective action problems related to economic activities, and in both cases the laws were struck down on federalism grounds. The law in New York was an effort to induce states to provide for the disposal of low-level radioactive waste, which no state wanted to do on its own. It was based on an agreement among several states expressly predicated on the idea that collective action was necessary to solve the problem. No matter, for it sought to commandeer the states. The law in Printz could likewise be seen as an effort to solve a collective action problem as no state would be able to prevent the purchase of guns without a background check if individuals could easily cross state lines to purchase a gun elsewhere.

In neither case was the existence of a collective action problem enough to save the law. In each case the Court concluded that the federal law at issue was not “necessary and proper” to carry into execution an exercise of the federal government’s power to regulate commerce among the states despite the existence of a collective action problem. Cooter and Siegel did not even try to account for these cases in their Stanford Law Review piece. Indeed, neither case is cited (nor are the sovereign immunity cases, which likewise press against their theory).

The collective action theory also has problems explaining the outcomes of recent decisions in which the Court construed the scope of federal statutes narrowly so as to avoid potential constitutional problems. In SWANCC v. Army Corps of Engineers and Rapanos v. United States, a majority of the Court adopted a narrowing interpretation of the scope of regulatory jurisdiction over “waters of the United States” under the Clean Water Act to avoid an interpretation of the act that could exceed the scope of the federal government’s Commerce Clause power. The theory of federal power necessary to uphold such a broad assertion of regulatory authority could likewise justify federal regulation of local land-use. Yet under the collective action theory of federalism, the Court’s concerns were unwarranted, as federal legislators could reasonably believe that states would not adopt sufficiently stringent regulations governing water pollution, wetlands development, or even land-use generally, due to fears of interstate competition. As above, the collective action theory of federalism would readily embrace assertions of federal power the Supreme Court has recently rejected.

In sum, the collective action theory of the federal government’s enumerated power may be a coherent theory, but it cannot be reconciled with the whole of the Supreme Court’s federalism jurisprudence of the past twenty years. If a majority of the Court is to find a limiting principle for the scope of federal power that will both uphold the individual mandate and be consistent with existing precedent, they will have to look elsewhere.

Going through high school shorter than Mitt Romney

2012-05-29T22:33:36Z

Browsing my high school yearbook for a family celebration this weekend, I discovered that I may have actual information about a burning issue in the Presidential campaign — namely, whether Mitt Romney was once a high school bully.

That’s because I went to high school, or at least grades 7 through 10, with him. We weren’t especially close. He was a day student, I was a boarder, and Cranbrook threw me out after the tenth grade, on grounds that in retrospect strike me as eminently reasonable. So I wasn’t there when he’s alleged to have cut some other student’s hair.

But I think I still can shed a little light on the bullying question. In fact, this photo pretty much speaks for itself. That’s me on the left, and Mitt on the right. He was the third smallest kid in the eighth grade. Not a good position from which to begin a career as the school bully.

With enough determination, I suppose you could give it a try. But you’d have to limit your attention to the two smallest kids. One of whom was me.

And I would remember if I’d had to spend my days dodging Mitt Romney. Getting picked on in high school is not something you forget. In fact, though, none of my admittedly small store of Mitt Romney memories suggests that he had a mean streak, even when dealing with a height-challenged candidate for the school literary magazine and drama club.

Admittedly, whether Mitt Romney was a bully in high school is not on quite the same level as whether George W. Bush drove drunk or Bill Clinton (let alone Barack Obama) inhaled, but it looks like this is as close as I’m likely to get to an election-year scandal.

So I’m planning to milk it.

Next up: just how cheap Mitt was in high school, and what that may say about his deficit reduction program.

Jeffrey Rosen’s Proposed Limiting Principles for Federal Power

2012-05-30T04:09:30Z

In a recent response to critics of his earlier column on the individual mandate case, Jeffrey Rosen claims that upholding the individual mandate would not lead to unlimited congressional power because “Congress [still] cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective action problems that make it impossible for the states to act on their own.”

If these two proposed constraints are interpreted in such a way as to allow the individual mandate, they would also allow any other mandate as well. In and of itself, the “activity” being regulated by the individual mandate – not having health insurance – has no “substantial effects on interstate commerce.” Not having health insurance does not involve purchasing any products across state lines or incentivizing anyone else to do so. It does, of course, have an effect on commerce in the sense that a person who doesn’t purchase health insurance could have made a different decision, which would have involved purchasing the product in question. That, however, is true of any decision to do or not do anything. A person who chooses to spend an hour reading a book at home could have instead used that time to earn income or buy a product, thereby affecting interstate commerce. The time I devoted to writing this post could have been spent doing consulting work for pay. Any decision to spend time on A is necessarily a decision not to do, B, C, or D. And the failure to do some of the latter is likely to have an effect on interstate commerce.

Rosen’s collective action limitation fares little better. If the Court seriously examines the individual mandate to determine if there is a collective action problem preventing states from adopting mandates of their own, it should find that no such problem exists for reasons I articulated in this article (pp. 90-94). If the mandate works as advertised – reducing health care costs and increasing access – both individuals and firms would be happy to be in states that adopt it, as Massachusetts did. Insurance companies, of course, have every reason to operate in states that require people to purchase their products. It is also strange to argue that the federal mandate solves a collective action problem between the states when 28 state governments are suing to have it overturned. That suggests that most states’ failure to enact a mandate is not caused by collective action problems, but by substantive opposition to the policy. If most states wanted a mandate, but could not enact one because of “race to the bottom” fears or the like, they would welcome the federal mandate instead of opposing it. I address these points in more detail in my article, as well as respond to various possible objections.

Of course the Court could find that the federal mandate solves a collective action problem if it chooses to defer to Congress’ assertions that it does. But such deference could be used to justify virtually any other mandate as well. For example, as I explain in the article, it could equally easily justify a federal broccoli purchase mandate:

The federal government could always posit that some sort of collective action problem inhibits state enactment of any mandate with enough political support to get through Congress. Indeed, the very fact that many states had not yet enacted a
mandate, or not enacted a strong enough version of it, could be cited as evidence for the “plausible” assumption that a collective action problem exists.

Under this minimal level of scrutiny, even the much-discussed broccoli mandate could probably be upheld. Increasing consumption of broccoli might lead to an improvement in public health that would reduce health care costs and increase economic productivity. But individual states face a collective action problem in enacting such a mandate. Any state that enacted a broccoli mandate on its own might face outmigration by residents who prefer a tastier, but less healthy, diet. As a result, its tax base would be eroded, while neighboring states that chose not to enact a mandate would benefit at the first state’s expense.
Even though the states as a group would be better off if all or most enacted a broccoli mandate, collective action problems prevent them from doing so without some form of federal intervention.

This collective action argument would likely fail any form of rigorous scrutiny. But it would surely meet minimal standards of plausibility in a regime of heavy judicial deference to Congress.

[I have omitted a footnote citing studies showing substantial improvements in health from eating broccoli].

As Randy Barnett points out in his reply to Rosen, the Court is highly unlikely to adopt a rule that requires it to carefully scrutinize Congress’ collective action arguments. If it did so, many defenders of the mandate would probably accuse it of “conservative judicial activism.”

In any event, Rosen’s collective action limitation only seems to kick in if the court has already found that the “activity” at issue does not affect interstate commerce. But, as discussed above, if not having health insurance qualifies as such “activity,” so too would any other decision to do or not do anything.

There is an intellectually serious case for abolishing all judicially enforceable structural limits on congressional power. The most coherent defense for a judicial decision upholding the mandate would have to rely on that case rather than on potential limiting principles that either fail to actually limit anything or would require the Court to strike down the mandate itself.

UPDATE: I have addressed other aspects of Rosen’s earlier piece here and here.

UPDATE #2: I presented a more general critique of the “collective action” theory for interpreting the scope of congressional power here.

Aaron Walker, Brett Kimberlin, and the Fog of Litigation [see UPDATE at the end]

2012-05-30T04:28:29Z

I’ve been hearing a lot about the latest phase of this controversy, but it’s still hard for me to figure out what is going on. A Maryland court has issued a “peace order” — basically, what most states call a restraining order — against blogger Aaron Walker, ordering him not to “harass” or contact Brett Kimberlin, a convicted bomber who is now a political activist. The order begins with a “finding[]”

That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):
Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]

This seem like a finding that is both hard to understand and — from what I’ve heard about the story — hard to support, if it means that Walker had threatened Kimberlin with death. [UPDATE: Hans Bader (Open Market), who criticizes the injunction, suggests that it means that Walker's posts didn't themselves contain unprotected threats, but prompted some readers to threaten Kimberlin; but that would not be a proper basis for the court's enjoining or otherwise acting against Walker, at least unless there is evidence that Walker intentionally solicited such threats, or intentionally incited likely imminent threats, and I haven't heard of such evidence.] Based on this finding, the order bars Walker from injuring or threatening Kimberlin (which would be illegal in any event), contacting or trying to contact Kimberlin, “harass[ing]” Kimberlin, and entering and perhaps approaching very near to Kimberlin’s residence and place of employment. The order may well be factually unfounded, but if it were factually well-founded, and if “harass” were limited to telephone calls, e-mails, and the like to Kimberlin personally, then it would likely be constitutionally permissible. (See generally Rowan v. United States Post Office Department (1970) and lower courts cases that have mostly upheld stop-talking-to-me orders.)

On the other hand, if the order were interpreted as banning Walker’s further speech about Kimberlin — other than constitutionally unprotected “true threats” of violence — then it would be unconstitutional. And The Blaze and others have reported that Walker was arrested following the hearing at which the order was issued, which led to speculation that he was arrested for what he blogged. [UPDATE: Indeed, The Other McCain reports that "One person who attended the hearing in Montgomery County District Court said that Kimberlin asserted that Walker’s continued blogging represented a violation of a 'peace order.'"] Nonetheless, an UPDATE at the Blaze post states,

The Blaze spoke to a clerk at the District Court of Maryland for Montgomery County who confirmed that Aaron Walker was in fact arrested following his hearing with Brett Kimberlin. He was arrested on second degree assault charges that were filed by Kimberlin when Walker, following a separate court hearing, took and held at bay Kimberlin’s iPad.

So it may be that the arrest was for grabbing Kimberlin’s property out of his hands (see the transcript of an earlier hearing for more on this [UPDATE: and also this statement by Kimberlin]) and not for blogging after all. That’s what little I know about the situation, but I thought I’d pass it along for whatever it’s worth. If readers can point to credible and detailed accounts that shed more light on the matter, and especially indicate what facts the judge specifically found that justified (1) the restraining order and (2) the arrest, I’d love to see them.

UPDATE: David Hogberg (Investor’s Business Daily Politics and Markets Blog) reports that the arrest was indeed based on Walker’s blogging, which would mean that it is indeed a First Amendment violation (see, e.g., this recent case):

This was the second peace order that Kimberlin has filed against Walker, demanding that Walker cease any contact with Kimberlin. In it, Kimberlin claims that Walker has “continually harassed” him with “alarming posts, tweets, alerts that arrive in my email box, which I consider threats to me personally and to my business.” Kimberlin came to court with pages upon pages of threatening emails and tweets that he claimed had resulted from Walker’s blog posts about him. None of them, though, were sent by Walker….

Here’s what seems to have happened. Although Kimberlin’s first peace order against Walker was eventually thrown out on appeal, it appears that while it was in effect Walker wrote a blog post about Kimberlin. This triggered a Google Alert that Kimberlin had set up. Kimberlin filed criminal charges based on that, apparently claiming that constituted “contact.” The court apparently agreed, and Walker was arrested….

It seemed like Walker did himself in when the judge asked, “Where do you see this case going?”

Walker, who has tried to get the Maryland State Attorney to file charges against Kimberlin for filing what Walker claims are false criminal charges against him (see here), replied, “I hope to raise enough consciousness to get the State’s Attorney to file charges.”

“How are you going to do that?” Vaughey asked.

Walker replied, “I’ve been raising awareness. There’s now 400,000 posts on Google discussing him (Kimberlin), and I’m guessing 300,000 of them are not very pleasant. These are people calling for charges to be filed.”

If you are a judge who knows very little about the Internet, Walker has just made it sound as though he’s able to generate all of this Google traffic against Kimberlin. And Vaughey seemed to believe that is what caused Kimberlin to get death threats….

The judge then said that Walker was the type who didn’t want to get into it “mano-y-mano” with Kimberlin but “you want to get together with all of your friends, who have nothing else to do with their time, in this judge’s opinion … and you are creating a conflagration, and you don’t care where it goes. And so you get some freak out in Oklahoma with nothing better to do with his time, so he does the nastiest things he can to this poor gentlemen (Kimberlin). What right does he have to do that?”

“He has no right to do that, your honor,” Walker replied.

“But you incited him,” Vaughey said….

At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”

The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.

“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody … you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”

This account of Walker’s having been arrested for violating the earlier order seems consistent with this docket entry for the peace orders and this one for the arrest. As I noted above, writing about someone — even with harsh criticism — remains constitutionally protected even if some listeners react by sending the target death threats. If the order is indeed understood by the judge as blocking Walker from speaking about Kimberlin, I hope that Walker promptly seeks to have the order overturned (using an emergency mandamus petition or some Maryland equivalent of that); and I expect that the appellate court will indeed overturn the order, much as the U.S. District Court (also in Maryland, as it happens) threw out the indictment in United States v. Cassidy, where the speaker’s behavior seems to have been much less justified than in this case.

But again all this depends on exactly what the basis of the arrest decision was, and (relatedly) how the judge is interpreting the “peace order.” If people have more details on this, I’d love to hear them.

Thanks to InstaPundit for the pointer. FURTHER UPDATE: Patterico’s take on this is similar to David Hogberg’s.

Are Regulatory Restrictions Killing The Law Firm Business Model?

2012-05-29T20:30:32Z

There is an interesting op-ed in the Wall Street Journal today by the Brookings Institution’s Clifford Winston and Robert Crandall, authors of First Thing We Do, Let’s Deregulate All the Lawyers (the op-ed length version of which Jonathan blogged about here). The piece, cheerily entitled “The Law Firm Business Model is Dying,” uses the Dewey & LeBoeuf implosion as a jumping-off point to discuss how regulatory limitations on the legal market are undermining the law firm model.

Their basic thesis is this:

The problems these firms face today are twofold: Large clients are increasingly using in-house counsel to reduce costs, and the public is increasingly taking the do-it-yourself route given the growing access to a variety of legal services and documents on the Internet. The rational response would be for new, low-cost legal firms to start up, and for incumbents to reduce costs and attract new clients by providing innovative services.

But that is happening only to a limited extent because of state licensing requirements and American Bar Association (ABA) rules. Deregulation could open the market and transform the legal industry for the better.

The authors argue that the requirement that new lawyers have graduated from an ABA-accredited school and pass a bar examination “significantly limits the flow of new legal practitioners,” and requires that new attorneys recoup the cost of their education in the form of high salaries. That, the authors say, makes it difficult to control costs, and “[e]fforts to outsource some tasks have met with only limited success.” Furthermore, the authors say, ABA regulations prohibiting financial-services companies from having an ownership stake in law firms limit firms’ financing options and raise its capital costs in a way that the authors say hurt the highly leveraged Dewey.

The authors do not (by my lights) spend enough time discussing offshoring of legal jobs, but it is a timely, thought-provoking read.

Ninth Circuit Finds Substantive Due Process Right to “Control Public Dissemination of a Family Member’s Death Images”

2012-05-29T19:20:39Z

The opinion in Marsh v. County of San Diego is by Chief Judge Kozinski and joined by Judges Paez and Wardlaw. It involves a claim by a mother that her Due Process rights were violated when a prosecutor investigating the death of her 2-year old son copied autopsy photographs of her son and then disclosed one of the photos to a newspaper. “Given the viral nature of the Internet,” the court concludes, the effort to publish the autopsy photo was an “intrusion into the grief of a mother over her dead son” that shocks the conscience and therefore violates the mother’s right to substantive due process. I’m skeptical of the court’s reasoning, but then I am often skeptical when judges find new rights that no one noticed before. The court then holds that qualified immunity applies, however, as no court has previously found a federal constitutional right in the control of death images. Thanks to How Appealing for the link.

NLRB Member Resigns

2012-05-30T02:14:01Z

Over the weekend, Terence Flynn resigned from the National Labor Relations Board. As I noted here, a report of the NLRB’s Inspector General had concluded Flynn shared confidential information with outside parties in violation of the NLRB’s rules. Flynn, a Republican ~~and~~ who allegedly shared internal NLRB matters with an advisor to the Romney campaign, was one of the three NLRB members who were recess appointed by the President in January. The WSJ reports on Flynn’s resignation here.

[Edited to correct an error. My apologies.]

NPR Discovers Privacy Victims, Buries Lead

2012-05-29T17:01:54Z

NPR aired what it must have seen as a heart-warming story about how social media is making it possible to do medical research on people with rare conditions, such as Katherine Leon, who at the age of 38 suddenly suffered a severe heart attack caused by spontaneous coronary artery dissection, or SCAD.

It is heart-warming, but surely there’s a public policy problem here too. Why exactly was medical research on this condition being obstructed? Turns out, the culprit is American privacy law.

Eventually Leon found the opportunity she needed. At a symposium run by womenheart.com at the Mayo Clinic, she spotted cardiologist Sharonne Hayes.

“She came up to me during one of the breaks at the meeting,” Hayes says, “and she said, ‘Oh, Dr. Hayes, what’s Mayo doing for research on SCAD?’ ”

“And she said, ‘Well, we aren’t doing anything,’” Leon says. “I said that I knew over 70 women through an online community who had it all over the world, that we were in contact.”

She asked Hayes if she would be willing to research SCAD, and Hayes said she would.

Hayes set up a virtual patient registry and allowed patients from all over the world submit their medical records and scans online. In the first trial, Mayo enrolled 12 patients — and had to turn people away.

Hayes is now working on a second trial where she hopes to enroll as many as 200 patients. She says traditionally, one of the biggest barriers to studying rare diseases are the privacy laws that make it difficult to access hard-to-find patients.

“I could not legally, ethically send out an email to all Mayo patients for instance, and say, “Oh, anybody got SCAD? You want to sign up for my study?” she says.

But the rise of social media has allowed patients to do for themselves what researchers like Hayes can’t: spread information about research. Through their personal Facebook pages, chat rooms and message boards, patients are recruiting each other in a kind of virtual word-of-mouth.

Wow, a privacy law with unintended consequences. Who could have predicted that?

Jeff Rosen Responds to Critics

2012-05-29T16:20:03Z

On TNR.com, Jeff Rosen has a thoughtful response to the criticism engendered by his New Republic magazine essay on Chief Justice Roberts. I just wish to offer five points in response:

Rosen inaccurately claims that, in the Raich case, I asked the Court to reverse Wickard v. Filburn. To the contrary, throughout that litigation, in our briefs and my oral argument, we distinguished Wickard, knowing full well that the success of the lawsuit depended on not reversing Wickard. As we stated in our brief, “Wickard differs substantially from this case. Properly understood, it supports a decision for Respondents.” First, we contended that the Agricultural Adjustment Act upheld in Wickard applied to commercial farms above a certain size, unlike the Controlled Substances Act which was being applied to backyard marijuana grown for personal consumption. Second, we contended that the opinion in Wickard did not turn on the “home consumption” of wheat by the farmer’s family (as the case is often taught), which the Court noted varied little and was small in quantity, but of the marketing of wheat as meat, i.e. feeding it to livestock and then sending the livestock into commerce. ”Consumed on the farm” referred mainly to wheat consumed as feed for livestock. While devoting pages to this argument, in a single sentence we did ask that Wickard be reconsidered “if the Court were to conclude that Wickard is controlling” (i.e. if it rejected our distinctions), but this is an obligatory request never mentioned in oral argument. It was never part of our objective in Raich. Sadly, our attempt to distinguish Wickard, although largely adopted by Justice O’Connor in her dissent, was rejected by the Court. (I have asked Jeff for a correction, which I assume will be forthcoming and will update this post when it occurs).

Rosen accuses me of “soft-peddling” our arguments in the ACA challenge, but in this case we are making the arguments we are making, and not making the arguments we are not making. There is no soft-peddling. That I hold other views, such as a commitment to originalism, that are not being put forward in this challenge is irrelevant to the merits of the arguments we are making in court (as they were in Raich). If the Court accepts the arguments we are making it will entail no acceptance of other positions I may hold that are not being advanced in the case. But the case will stand for the proposition that there are are judicially-enforceable limits on the enumerated powers of Congress, which I believe there must be — a proposition that Chief Justice Rehnquist reaffirmed in his majority opinion in Lopez.

Rosen does not respond to the claim that he had criticized the Rehnquist Court’s New Federalism decisions, including Lopez and Morrison, as “conservative judicial activism.” Does he now think those cases were rightly decided? They were 5-4 decisions, as was Printz.

As others here have noted here, one cannot avoid 5-4 decisions in federalism cases as long as a block of 4 justices refuse to find any judicially-enforced limits on the enumerated powers of Congress. In his post, Rosen contends that “Congress cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective action problems that make it impossible for the states to act on their own.” To date, none of these 4 has adopted Rosen’s purported limits, but Justices Sotomayor and Kagan have not yet opined on the scope of the Commerce Clause. Perhaps they will break with the position of Justice Stevens and Souter bringing to 7 the number of justices willing to find judicially-enforceable limits on the Commerce Power of Congress.

But even if they do, there will still not be 5 votes for Rosen’s proposed limiting principles. The “substantial effects” issue is now dealt with by rational basis review. Under Lopez and Morrison, Congress gets to decide whether economic activity in the aggregate has a substantial affect on interstate commerce. Does he advocate heightened judicial scrutiny of this issue? That would require the rejection of more deferential precedent, as affirmed in Raich. (By the way, in Raich, we also did not contest this deference on the issue of “substantial effects.” Instead we argued that our clients were not engaged in “economic” activity.) And Rosen’s second proposed limit (“there are no collective action problems that make it impossible for the states to act on their own”) would face similar problems: the Court would defer to Congress on this question and, were they to do otherwise, the justices would be accused, if not by Rosen then by many others, of engaging in conservative judicial activism.

The Secret “Kill List” and the President

2012-05-29T15:28:55Z

My corner of the national security law world is abuzz today reading the outstanding New York Times article by Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” As Ben Wittes says at Lawfare, it is a richly textured, detailed look at how the administration approaches targeted killing (whether with drones or human teams or in combination), and is the most detailed insider account of how the administration has gradually evolved a process for vetting targets. Opinio Juris’ Deborah Pearlstein focuses in on a key passage in the story, one that talks about the essentially casuistical evolution of targeting standards, case by case:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.
The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.
The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

The article is important in several ways. First, it seems pretty clear that the administration cooperated in giving information to the reporters, because it wants to make clear that there is a process and a robust one for making targeting decisions. In this regard, this article fits with the series of national security speeches by senior officials and general counsels of national security departments of government – most of them are collected here, at Lawfare, in a list that gets periodically updated. It is quite true that if one believes that targeted killing is simply extrajudicial execution as a matter of substance, or that it has to be approved by a judge, or that the process has to be judicial rather than that of the political branches or the executive acting in an armed conflict and/or national self defense, then none of this will impress you. But if you are most people in the United States, your reaction is much more likely to be, good, I’m glad they are killing the bad guys, and I’m glad they’re thinking hard about who they’re killing and why before they do it. Clearly the administration wants to get across a message to the public that there is a serious process, even if the circumstances for making targeting decisions are novel.

That signal is aimed, presumably, at broad opinion-setting elites – liberal and conservative, but mostly liberal – whose visceral reactions to how the issue is framed (targeting in unconventional war or just remote execution?) matter over the long run to its institutional legitimacy. As Jack Goldsmith has pointed out in his new book, Power and Constraint, targeted killing and drone warfare are likely to be the next “detention and interrogation” ground of de-legitimation in the broader argument over counterterrorism. The Obama administration is more aware than most administrations just how important it is to hold a certain legitimacy high ground, and that starts with its framing among opinion-elites.

Second, there is also likely a signal here to the judicial branch that this is not unconsidered or purely discretionary; far from it. More exactly, there is a signal that the judiciary would have no ability to do a better job, as an effectiveness question, quite apart from the Constitutional and other domestic legal questions. It is highly unlikely that the judicial branch, taken as a whole, has any appetite for getting involved in these questions – particularly on the front end, of signing off in advance on targeting, effectively death warrants, given the Constitutional and other domestic legal issues raised. Even in an indirect, informal way, this kind of article helps set the picture of a process with serious mechanisms for discussion and review; it helps establish the legitimacy of the process – and so also helps establish the legitimacy of the judiciary staying out of it.

Third, the administration wants to send a clear signal that the President considers and signs off on these personally, and that this is far from a perfunctory or unconsidered sign-off. I applaud the President for this level of personal review; I think it is right. This signal carries a certain ambiguity, however – one that I believe the administration needs to consider closely. The ambiguity lies in whether the President’s personal, considered attention to each decision is understood and conveyed to the public as a matter of the burden of the institutional presidency – something that would be no less true of a President Romney than a President Obama. In that case the implication is that President Obama is stepping up to the plate to establish a process not just for himself, but for his successors and for the institution of the presidency. And he does so in a way that both sets a precedent (in the sense of a certain burden) for the proper level of involvement of the president in targeted killing decisions. But, while setting a presidential burden, this also gives future presidents important institutional legitimacy, through the weight of precedent established by the acts of a prior president, and institutional stability – to targeted killing, specifically, but also by implication to the emerging paradigm of covert and small-scale self-defense actions against non-state terrorist actors which, in the future, may or may not have anything to do with Al Qaeda and might be addressed to wholly new threats.

The alternative is that President Obama is sending a signal that these actions are legitimate only because he is personally trusted to do the right thing on these decisions, just because he is Barack Obama. His constituencies trust him with this power in a way that they would not entrust to any other president, including those who come after. In other words, there is a question implicit in the New York Times description as to whether the President is conferring a purely personal legitimacy that disappears with this presidency, or whether he and his administration are creating a long term process, and conferring the weight of institutional legitimacy on it.

It is obvious from how I’ve framed the ambiguity that I believe that the administration has an obligation to create lasting institutional structures, processes, institutional settlement around these policies. It owes it to future presidencies; every current president is a fiduciary for later presidents. It also owes it to the ordinary officials and officers, civilian and military, who are deeply involved in carrying out killing and death under the administration’s claims of law – it needs to do everything it can to ensure that things these people do in reliance on claims of lawfulness will be treated as such into the future. And in fact I believe this is what the senior leaders and lawyers who have issued speeches for the administration are seeking. But I think there is still room for the players involved to say clearly that these processes are legitimate for the executive, this president and future presidents.

Finally, we might add, the article says that the decision to target Anwar Al-Aulaqi was, in the President’s mind, an “easy one.”

Well, that’s a relief

2012-05-29T15:09:00Z

It turns out that the backdoor found in Chinese-made US military chips by Cambridge researchers might not be evidence of a planned cyberattack. The backdoor is probably there, all right, say other researchers, but that’s because backdoors are built into many field-programmable chips for debugging purposes. Once installed, they can’t be easily removed. Instead, manufacturers try to lock the backdoor with encryption keys that only the manufacturer knows.

That, of course, looks like a manufacturer’s backdoor because, well, that”s what it is. So, really, there are already backdoors in millions of chips being used by critical infrastructures, military systems, and personal devices. But they’re not Chinese government backdoors.

Apparently we’re all supposed to relax now.