Per Curiam
-- A man has to do something for a livin' these days

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Friday, April 09, 2004
Don't follow our example: If you're a 1L and not planning to apply (and succeed in your application) to the Harvard Law Review, it's time to rethink your position.

For the second time in recent weeks, a student-authored note in the Law Review has attracted attention in the mainstream media and is influencing attitudes and opinions outside the world of legal academia.

This time, the venue is Nevada, where the Las Vegas Review-Journal has cited a January student note on Guinn v. Legislature of Nevada as ammunition in its campaign to overturn the Nevada Supreme Court's ruling in the case. The editorial is complemented by a full-page article interviewing parties in the case, their attorneys, and even a senior Supreme Court justice for their opinions on the student note.

The Note's argument is well-summarized in this passage:
In Guinn, the Nevada Supreme Court misapplied its own rules for interpreting conflicting constitutional requirements by failing to harmonize the two provisions and by giving precedence to the more general requirement. The court, in effect, substituted a new rule, that the substantive trumps the procedural, for its established rule that the specific governs the general. This new rule is not only contrary to precedent, but also threatening to the separation of powers in two ways: it provides the court too much discretion in deciding which constitutional requirement to prioritize when there appears to be a conflict, and it jeopardizes the integrity of procedures that are central to the separation of powers in a free republic.
Ultimately, the Note goes on to argue that the Court could have "attempted to justify its prioritization of the education provision" on different (albeit shakier) grounds.

The citation for the note (unsigned, following HLR convention) is 117 Harv. L. Rev. 972. The case discussed is Guinn v. Legislature of Nevada, 71 P.3d 1269 (Nev. 2003).

While the note has not yet been cited in a legal context, the anonymous author should be glad to have made a contribution to an ongoing political issue. And the subject should be a good lesson to aspiring student legal authors: state law can be as fruitful a source for "recent case" and "recent development" topics as federal law, where students often focus their attention.

The first high-profile Harvard Law review note was also in the January issue, a book note on Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design,By Francis Beckwith, which sparked furious debate in the blogosphere, including a defense from author Lawrence VanDyke over at Ex Parte. Another good illustration of the power of the Harvard Law Review to get ideas heard and recognized.

Update: Tim Sandefur reports that he cited the note repeatedly in his amicus brief, observing that in choosing to write on Leguin, the HLR author beat his own article to the punch.

What Might Have Been: Sometimes it is scary how much Gregg Easterbrook and I think alike. On his blog today he has an "alternative history" that re-counts the public outrage that surely would have accompanied any 'pre-emptive' action taken by the Bush administration to prevent potential terrorist acts. I was discussing this very thing last night, but Easterbrook says it best:

    On August 7, 2001, Bush had ordered the United States military to stage an all-out attack on alleged terrorist camps in Afghanistan. Thousands of U.S. special forces units parachuted into this neutral country, while air strikes targeted the Afghan government and its supporting military. Pentagon units seized abandoned Soviet air bases throughout Afghanistan, while establishing support bases in nearby nations such as Uzbekistan. Simultaneously, FBI agents throughout the United States staged raids in which dozens of men accused of terrorism were taken prisoner.

    Reaction was swift and furious. Florida Senator Bob Graham said Bush had "brought shame to the United States with his paranoid delusions about so-called terror networks." British Prime Minister Tony Blair accused the United States of "an inexcusable act of conquest in plain violation of international law." White House chief counterterrorism advisor Richard Clarke immediately resigned in protest of "a disgusting exercise in over-kill."

    When dozens of U.S. soldiers were slain in gun battles with fighters in the Afghan mountains, public opinion polls showed the nation overwhelmingly opposed to Bush's action. Political leaders of both parties called on Bush to withdraw U.S. forces from Afghanistan immediately. "We are supposed to believe that attacking people in caves in some place called Tora Bora is worth the life of even one single U.S. soldier?" former Nebraska Senator Bob Kerrey asked.


    Bush justified his attack on Afghanistan, and the detention of 19 men of Arab descent who had entered the country legally, on grounds of intelligence reports suggesting an imminent, devastating attack on the United States. But no such attack ever occurred, leading to widespread ridicule of Bush's claims. Speaking before a special commission created by Congress to investigate Bush's anti-terrorism actions, former national security adviser Rice shocked and horrified listeners when she admitted, "We had no actionable warnings of any specific threat, just good reason to believe something really bad was about to happen."

I recommend the entire post.

There is no question in my mind that Easterbrook is correct, even if his prognostications are slightly exaggerated. The same individuals currently lambasting the administration for "failing to prevent" the 9/11 attacks, even though a few intelligence reports existed, would be the same people who would have condemned the President for taking preventative action.

In fact, we don't have to get into hypotheticals for this to be true. With apologies to Mr. Easterbrook, imagine this scenario.

    National Security Advisor Condoleezza Rice and President Bush were called before the Senate today to explain why the Administration did not act to prevent the "dirty bomb" terrorist attacks on Washington, DC, Chicago and Los Angeles. The attacks, which were fully financed by Saddam Hussein's Iraqi regime, occurred soon after the President's re-election in 2004.

    Rice and Bush both claimed that although some evidence existed of Hussein's ability to manufacture weapons of mass destruction, the evidence was incomplete at best and did not justify military action. But, the administration did admit the existence of several high-level memoranda which warned that Iraq may possess the technology to produce such weapons and the financial means to use them against the United States.

    "Saddam Hussein continually thwarted United Nations weapons inspectors for over a decade," decried Senator Ted Kennedy, "and this wasn't enough evidence that he was producing weapons?" Rice countered that the findings were not conclusive enough to justify a pre-emptive strike, although the administration did focus a great deal on potential threats. "Hussein had used biological weapons against his own people," said one senior Senator, "and he was not considered a threat? How much would it take?"

    The commission criticized the administration for focusing too much attention on Al Qaeda in the wake of the 9/11 terrorist attacks and ignoring other potential threats. "How many meetings did you have concerning Al Qaeda after 9/11?" asked Senator John Kerry. "And how many did you have concerning the Iraqi threat? Did the administration believe that only one threat existed? I know that if I had been President I would have prevented the Iraqi threat."

    Memorial services will be held in each city marking the one-year anniversary of the attacks, which killed 3,000 people and injured thousands more.

In the end, it is easy to be a Monday (or Tuesday) morning quarterback. It is easy to see the evidence after seeing the results, but incredibly difficult to "predict" the future. People are understandably angry about 9/11, but their anger should be directed at the terrorists responsible for these deadly attacks, and not the administration that, like the rest of us, could never have imagined them occurring.

Thursday, April 08, 2004
The TSA's "Hassle-Fly" List: In Slate, Tim Noah criticizes the ACLU's lawsuit against the so-called "No-Fly" list, despite his own inclusion.

Noah concedes that the TSA and the airlines should be trying to develop a better system with fewer false positives, but ultimately dissents from the suit because he doesn't believe that the burdens on individuals on the list rise to the level of constitutional violations. He argues that "the ACLU's specific complaints about the No-Fly List are so petty that I can't imagine any reforms would ever satisfy it."

That's probably true -- my sense is that the ACLU is involved for two reasons. First, it's a good "headline grabber," that reinforces the media theory that the war on terrorism is obliterating our civil liberties -- with good examples that hit ordinary Americans, not just al Qaeda terrorists locked in Guatanamo Bay. Second, what they really dislike is the underlying list that happens to snare innocent people with similar-sounding names. Their desire: that the government should not be able to keep lists of people, at least without meeting a "probable cause" threshold.

But I don't accept Noah's premise that the only burdens on passengers are the additional questioning, bag searches, and inability to use e-ticketing. He dismisses out of hand the possibility that being repeatedly told that "you may be a suspected terrorist" is important, and ridicules the idea of stigmatization:
Michelle Green, a master sergeant in the Air Force, an apparent Selectee, felt "publicly embarrassed" and "stigmatized" by the added screening procedures; apparently she'd hoped to make a better impression on the other passengers traveling from Seattle to Fairbanks.
Noah claims that this makes her a "crybaby."

No, it doesn't. There is something scary about having the government's imprimatur of "potential terrorist" publicly stamped on you at the airport. If people are being singled out because their name resembles a terrorist's name, the TSA should be working hard to mitigate these effects - by explaining the reason for the search (at least in general terms), by apologizing, or by developing better systems.

Let's be clear. I do think that the "Hassle-Fly" list should be lawful. But it's not because there's no impact on those who find their way onto the list. It's because 1.)in extraordinary situations, the government should be able to keep lists of subjects, contrary to my perception of the ACLU's underlying objectives; and 2.) the burden on these individuals is minor relative to the need to prevent a terrorist using their name from boarding an aircraft.

Hat tip: Eugene Volokh, who contributed the nice "Hassle-Fly" label in the title of this post.

John Kerry and the suppression of dissent: It has been fashionable among those who favor a law-enforcement approach to the war on terrorism, or who are concerned about the Patriot Act’s effect on civil liberties, to characterize the Bush administration for suppressing dissent. This phenomenon has been most widely-seen in the context of the misuse of the remark that people should "watch what they say." (which was in response to the disparagement of Sikh-Americans by a Republican congressman and American servicemen by comedian Bill Maher, to set the record straight).

But now Senator Kerry has suggested that if elected President, he would be inclined to suppress speech he doesn't like. The Times story on Sen. Kerry's plans to limit federal spending has an interesting start:
Senator John Kerry said today that if he is elected president, no one in his administration will be allowed to propose new programs without the means to pay for it
The meaning of this statement depends on how one interprets the words "propose" and "administration," of course, but my first reaction upon reading it was that it seemed to be a significant limitation on government employees' freedom of speech.

First, recognize that while the President has the power to fire members of his Cabinet, the White House staff, and other appointees (although
Andrew Johnson was impeached, in part over this issue, when Congress passed a law stating otherwise during Reconstruction), he cannot fire the heads of independent regulatory agencies, who are often considered to be part of the administration (although the President can pressure them to resign -- see, e.g., Harvey Pitt). So a President Kerry would face particular trouble in keeping his SEC, FCC, Federal Reserve Board, etc. appointees from proposing new programs.

But the mere existence of the firing power doesn't mean that he has unlimited ability to constrain employee speech. In Pickering v. Board of Ed., the Supreme Court held that a school board could not fire a high school teacher who criticized the level of funding given to athletics, overturning the classic formulation of Justice Holmes, who had observed that a policeman's "constitutional right to talk politics" as "he has no constitutional right to be a policeman."

Pickering laid out a balancing test for government-employee speech when that speech is on a matter of public concern: the value of the speech to the employee and to the public must be balanced against the extent to which the speech hinders the efficiency, discipline, and authority of the government.

A proposal for a new program would be a matter of public concern. Sen. Kerry’s rule would be testing the balancing of interests – does the President’s interest in exerting authority support keeping expensive, or unpaid-for, program ideas from being aired to the public. A plurality in Waters v. Churchill noted that the First Amendment provides no bar to prevent "the governor from firing a high-ranking deputy" from criticizing his legislative program. This might suggest that Sen. Kerry could impose his requirement, as long as he limited it to sufficiently high-ranking members.

But it is not clear that a program proposal carries with it the same challenge to authority that an outright criticism does, and the public may have a stronger interest in hearing new suggestions aired than in simply hearing criticism of past activities. Moreover, there are over 5,000 presidential appointees, who may be considered members of his administration, even if Sen. Kerry means to exclude civil servants from his definition of administration. This is a vast cadre of people who are best positioned to make proposals on how to improve the functioning of government; even if the First Amendment does not protect their speech, does Sen. Kerry really want to suppress all of their ideas?

For now, the best place to give the senator the benefit of the doubt is undoubtedly on the word "propose." We can believe that he means something more formal than simply a statement that "we should raise salaries for National Guardsmen called to active-duty" or a presentation to Congress by the Department of Energy’s Associate Administrator for Infrastructure & Security suggesting that we double the size of security forces at nuclear power plants.

It is always tempting for presidential candidates to present suggestions of their omnipotence once elected. Sometimes, their power is foreclosed by the laws of nature, or of economics. And at others, they may need to mind the limits of the Constitution and sound public policy, even if they don’t intend to "watch what they say."

Wednesday, April 07, 2004
Another Step Towards the X-Prize: Today, the FAA issued a launch license for Scaled Composites' SpaceShipOne, frequently handicapped as the favorite. This is Burt Rutan's team, and they'll be required to give the X-Prize organizers 90 days notice before making their attempt.

It's good to see that Scaled was able to cut through the red tape and get the license. JOLT will be publishing a student note by Neil Farbman examining efforts to simplify the regulatory structure for launches, like H.R. 3752.

In my often-expressed opinion, we can thank the X-Prize organizers and the competing teams for sparking the White House's space initiative. When one of these teams wins the prize, though, NASA better be ready for the question: "Why do we need you guys at all?" There are good answers they can give, but the question is going to be asked.

Tuesday, April 06, 2004
The Bush Administration's Conspiracy Against Itself: For all of those people who believe they can't trust anything that the government says (like John Kerry, who thinks we should be out of Iraq, but not by June 30, because that's the date the White House set), here's proof that the administration is bent on political suicide. Donald Luskin excerpts Gene Epstein's explanation of why widely-reported unemployment numbers are wrong. My favorite bit:
This footnote I'm referring to appeared quite prominently below the officially posted time series... [i]t reads, "Data affected by population changes in population controls in January 2000, January 2003 and January 2004."

Now, anyone who has actually followed the employment numbers will know immediately what the agency is trying to tell us. The recent figures are no damn good, is what it's trying to tell us, and to find out why, you'll have to dig a little.

Go on the Internet and click on -- a Bureau of Labor Statistics (BLS) paper posted March 3, 2004 -- to get the real numbers. By the third sentence of that paper, it's clear that the decline you might find in the officially posted data is a mirage. (The math's a bit too involved to go into here.)
In other words, the Department of Labor is putting out information about the economy that facially sounds bad, but in reality, is either good (if you trust Epstein, Luskin, and some economists), or bad (if you trust Paul Krugman, The Economist, and other economists). How can you tell? According to Epstein, you can't, at least, not without complex mathematical calculations.

Sounds like a goatf**k to me.

Does file-sharing hurt pay-per-download services? Greg thinks it does: "I am sure there is an adverse impact on pay-per-download services, such as iTunes."

I'm not so sure.

The entertainment industry has been pursuing an interesting strategy, pressing both the law and social norms into its service as it tries to persuade people to cut back or cease downloading, with mixed success. The legal tactics at first seemed to yield a drop in downloading, but later studies have called that into question. At the same time, anecdotal evidence suggests that the MPAA's "Movies - They're Worth It" advertising campaign has made many people I know more reluctant to download without a second thought.

Given the impressive success of the 99-cent download (I suppose that's arguable - but given that almost all of the music is available with equal ease for free), I think it's plausible that some people's behavior follows this model. They hear (or recall) a song that they'd like. 10 years ago, their options were a.) buy the album; b.) find a friend with the album, and copy the song to a cassette; or c.) wait to hear the song on the radio. Today, conditioned by 5+ years of Napster and illegal downloading, their impulse is to head to their computer. But, because of the entertainment industry's education campaign and the media attention given to lawsuits, some people visit a pay-per-download site instead of illegally downloading.

I also think it's worth recognizing the likelihood that without illegal downloading, the major record labels would probably never have licensed their catalogs to iTunes and other pay-per-download services. In that sense, the download services owe their viability and significant success to downloading, and to the music companies' belief (right or wrong) that downloading is the source of their slackening sales.

These two factors provide some balance to the otherwise-theorized adverse impact on iTunes, etc. of illegal music downloading.

Interestingly, in its list of "other factors" contributing to the slowdown in music sales, the Times lists one of my favorite causes, radio industry consolidation, but omits my other favorite cause: the music industry itself. Could it be that they're simply doing a bad job of promoting and delivering music that I want to hear? When Hollywood has gone through slow cycles, filmmakers have been blamed for making bad movies. How come the music industry gets off the hook?

And I love this quote: "There's a lot of research out there that's conducted with an agenda in mind," said Ms. Charneski, now the head of research for the record label EMI. Uh huh.

Monday, April 05, 2004
Does File Sharing Impact Record Sales?: One of the most common (and often unquestioned) arguments of the recording industry in the fight over P2P file sharing has been that file sharing hurts record sales. It makes sense, right? You want the music and you have 2 choices: download the song or album, or buy the CD. But a new study is out that questions this fundamental assertion. One of the two leads of the study explains it as follows:

    "Say I offer you a free flight to Florida," he asks. "How likely is it that you will go to Florida? It is very likely, because the price is free." If there were no free ticket, that trip to Florida would be much less likely, he said. Similarly, free music might draw all kinds of people, but "it doesn't mean that these people would buy CD's at $18," he said.

This seems to make a great deal of sense to me. I know from personal experience that there are a number of songs that I might download, when there was no way that I would go out and buy the album. In addition, there are a number of people that would download the song, and then go out and buy the CD.

Expectedly, the recording industry has sharply criticized the report, and the article points out a number of errors. In addition, the results do not change the legal argument (maybe only the damages). The downloads are still infringements of valid copyrights, no matter how tyrannical the recording industry may seem. Moreover, I am sure there is an adverse impact on pay-per-download services, such as iTunes. However, this is something to consider, at least in the battle over public opinion and when evaluating the damage done to the artists and the recording industry.

Update: More on the "other" costs of downloading (i.e. it cheapens the art) in the context of the Canadian court decision that upheld file sharing. Thanks to Tyler at Volokh.

Opening Day: Never mind the two-game series in Japan and the made-for-TV game last night, today marks the beginning of the baseball regular season. Opening day has always been one of anticipation and excitement for baseball fans, as all teams have a shot at having a great season and making a play-off run. And as much as some (myself included) may lament the dominance of certain teams in baseball, I believe that at least twenty (and maybe more) teams have a legitimate shot at not only making the play-offs, but also winning the World Series.

Look at the past three seasons. In 2003, the Florida Marlins came from nowhere, capitalizing on great young pitching, a few key free agent signings, and a wise managerial change to defeat the giant Yankees. In 2002, it was the Anaheim Angels coming from nowhere to defeat the Giants and Barry Bonds in a thrilling Series. In 2001, the duo of Schilling and Johnson carried Arizona to a seventh game, final at-bat win. Are the Yankees always good? Yes, but they don't always win.

It seems like a long time until October (and it is-- like most professional sports, baseball's regular season goes on too long) but there is a great deal to look forward to in the mean time. Can the Cubs and red Sox live up to expectations? Will there be a "shortstop controversy" in the Bronx? What young players will step into the spotlight for the first time? Can the teams in Philadelphia, Arizona, Cleveland and Seattle bounce back and make the postseason?

Baseball needs to act quickly to dispose of the steroid scandal -- passing regulations on drug testing so that this story can be moved to the back burner and the country once again can focus on the greatness of the sport. Nothing beats going to the ballpark on a sunny afternoon or turning on a game when there is nothing better to do on a hot summer night. Let's hope this season focuses on the game and new teams continue to emerge as play-off contenders.

Play Ball!

Sunday, April 04, 2004
Most people who go to Hawaii go on vacation, (Navy pilots and an occasional lucky attorney excepted.

Few of these visitors venture to a cemetery, perhaps excepting the "Punchbowl Cemetery", where 13,000 soldiers and sailors (including correspondent Ernie Pyle) are buried.

But maybe more visitors should go: a letter-writer to today's Boston Globe magazine notes that Hawaiian shirts are often appropriate attire at funerals, a practice invited by the designation "aloha attire" in an obituary. And sure enough, today's Honolulu Star-Bulletin confirms it: the very first obituary includes the reference, as do many others (still more recommend "casual attire").

Two questions: 1) is there still a dress code embedded within this category -- are there "respectful" and "disrespectful" forms of aloha attire? 2) Who's up for a Hawaiian theme next Halloween?