Big Changes

Big changes are coming to Law Prof on the Loose.

Starting tomorrow, I will be on leave from GW while I serve as the Director of Research and Policy of the Administrative Conference of the United States ("ACUS"). I anticipate returning to my regular academic position in 2012.

I haven't spoken to my new boss about this yet, but I probably won't be blogging about politics, Supreme Court cases, and other public affairs while working for the government. I'm not planning on taking down the pre-existing blog posts (just as I am not recalling any of my prior publications, either), but further posts will have to be different, if they appear at all.

Expect no posting for at least a month or so, and then, if I blog at all, it will probably be on topics far removed from public affairs. Poetry, perhaps? Recipes, anyone?

Faithful Readers, I have appreciated your interest and support. It's been a little over three years and not quite 600 posts, including a couple of guest stints on Concurring Opinions and PrawfsBlawg. I've enjoyed this avenue of public expression. Your comments have been interesting and stimulating. Together, we have considered the rights and wrongs of judicial and political decisions, the foibles of the rich and powerful, and occasional notes from culture, sport, and life.

I'll miss you all during this hiatus. Hope to see you again soon.

Yet More Media

It's been a big media week for Law Prof on the Loose. I was in a story on the local FOX news last night. You can see it here.

The story was about all the money DC is paying out in settlements in lawsuits over alleged police and other public misconduct. As usuall, the 5-second snippet of me consists of the most contentious thing I said. They show me saying that defendants are usually happy to string out cases and maybe wear down the plaintiff. Which is true, but my larger point was that defendants, without doing anything wrong or unethical, make decisions about what to do based on cost-benefit analysis. If setttling a case is cheaper than the expected cost of going forward to trial (and bearing in mind the effect on other cases of either course of action), a defendant will settle. There are lots of considerations, but the main one is figuring out the lowest cost course of action.

Watch What You Say

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.

In the Post

Law Prof on the Loose had a letter in the Post yesterday -- you can see it here.

Exam Time

Sorry, Faithful Readers, but I am consumed with that semiannual joy of law professors, exams. I finally finished writing my exams -- and wow, that took a long time -- and now it's time for the worst task of all, grading them. Blogging will be minimal from now through the end of the year.

Happy holidays to all. Health and prosperity to you in 2010.

Another Guest Slot

Having come off my guest appearnce at Concurring Opinions, I'll be spending this month guesting at PrawfsBlawg. Faithful readers can follow me here or there.

Disturbances in the Blogosphere

The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse. (See particularly section 255.5, Example 7.) We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point. The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.” This venerable proscription should apply to new media as well as to old. The Internet is new and cool, but deception over the Internet is still deception. Deception on a blog is still deception.

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on. Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question. I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions. If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too. So it’s ultimately a question of fact whether people assume bloggers get free stuff. But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received. Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me join both trends at once. I recently redid my kitchen, and got all-new KitchenAid appliances. I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great. (FTC-Recommended Full Disclosure: I didn’t get a dime for saying that but I would be happy to accept an appropriate fee. KitchenAid, call my agent.)

But the oven! Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all? Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it. Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation. And it stays on the whole time you’re cooking. The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel. There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go. I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven. But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up. And they’re not rated for noise either. There’s no way to tell whether an oven is noisy short of buying it and installing it. After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter. So that’s what I recommend.

And I didn’t get a dime for saying that either.

Blog Envy

I saw the movie Julie and Julia, a melange of Julia Child's experience in getting her famous cookbook published and Julie Powell, a blogger from New York City who cooked her way through Julia Child's cookbook and blogged about it.

The movie is endearing and enjoyable, but, speaking from a blogger's perspective, can I just say, wait a minute? This Julie Powell committed herself to cooking the recipes in Julia Child's cookbook over the course of a year and blogged about how it was going? And she got famous doing that? How could anyone possibly be interested?

I must really be doing something wrong in my blog. I suppose I could have visited every historic site, park, and museum in the Washington, DC area and blogged about each of them. Or I could have requested a 15-minute interview with every member of Congress and blogged about that for 535 days. But why would anyone care? I mean, really, if you thought you were going to get famous by blogging your way through someone else's cookbook, I would have told you that the odds were about one in several million.

Well, she started early: her first entry is August 25, 2002. I don't think there were so many blogs back then. Now there are millions. And she persisted. And she had a good focus, instead of just looking at "the News, the World, and Life," the way I do. And it worked! Her blog was made into a book and then a movie, while I'm still waiting.

But my first taste of fame starts tomorrow! Faithful readers, next month's posts will appear here and on Concurring Opinions, a group blog hosted by my colleague Dan Solove. They've got thousands of readers, so I'll have a wider audience. Look out, competing bloggers.

Staycation

Sorry for the lack of content this week, faithful readers. As you may have noticed, I'm taking a "staycation" to play bridge at the North American Bridge Championships, which the ACBL has thoughtfully scheduled about 4 blocks from my home. Back next week with more of your favorite content.

Bots Get Confused

Now this is interesting -- just moments after today's post, I got an automated message from Google saying that my blog had been marked as a possible "spam blog." Logging on to check, I saw the message: "This blog has been locked due to possible Blogger Terms of Service violations. You may not publish new posts until your blog is reviewed and unlocked. This blog will be deleted within 20 days unless you request a review."

No reason was given. I'm guessing that the references to "Jews" in the previous post, and perhaps particularly the quotation of "kill all the Jews" from the crazy anti-Semite who shot up the Holocaust museum, triggered Google's bots' sensitivities.

I presume it will all work out, but it's interesting that automated devices designed to cut down on anti-semitic spam can also interfere with basic social commentary.

And by the way, if you see this post, then my blog isn't really locked. But I am required to type in a nonsense word as verification that I am at least a real human posting this.

Back in Business

I'm back from my college reunion -- I won't give the somewhat scary number involved, but clicking on the link and simple subtraction will provide alert readers with the answer.

It was great. If you've got a milestone reunion coming up, go. It was great to see so many old friends and acquaintances. Also, everyone had mellowed considerably. Old animosities had faded. There was no competitiveness or cliqueishness. We were all just happy to see each other.

Now back to work.

Blogging Break

Sorry, faithful readers, but posting is likely to be slim for the next week. See you June 10, I hope.

Catching Up

Sorry, faithful readers, for the long delay. I was away -- in India.

A few thoughts about my time away:

* On the first day of my trip, India-themed Slumdog Millionaire won the Best Picture Oscar. As I've mentioned before, that was a good picture, but the love interest was not compelling. Let's face it, Jamal spends the whole time mooning after a woman he barely knows. So I liked it but I wouldn't put it quite in the "best picture" category.

* While we're talking about the film, there was an indignant article in the Hindustan Times criticizing the film for its "'factually incorrect' portrayal of foreigners’ shoes being stolen at Taj Mahal, and touts harassing tourists." Having now traveled to the Taj Mahal and many other tourists sites in India, I can certify that (a) no one ever tampered with my shoes, even though I had to leave them at the door many times, but (b) boy, was I harassed by touts. I had a marvelous time and I recommend India to others, but you definitely have to be prepared to have unwanted products and services thrust upon you aggressively many times each day.

* I worked my way through several India-themed books: Jhumpa Lahiri's Interpreter of Maladies, The Namesake by the same author, George Orwell's Burmese Days (set in the period when Burma was part of India), and Rohinton Mistry's A Fine Balance. All quite good but very sad. I presume happy things happen in Indian literature sometimes. But not in these books. I recommend any of them, but reading them all in a row was rather depressing. Don't try that at home.

* I visited Delhi, Agra, Jaipur, Jodhpur, Udaipur, and Varanasi. Highlights of the trip included the Presidential gardens in Delhi (magnificent, but only open in February), the Taj Mahal in Agra(however high your expectations are, it will exceed them), the Jantar Mantar in Jaipur (it looks like a bizarre, abstract sculpture garden, but it's actually an 18th-century astronomical observatory), the Fort in Jodhpur, the palace in Udaipur, and a sunrise boat trip on the Ganges in Varanasi.

Back to business.

Blogging Break

Sorry, faithful readers, but I will be unable to blog much, if at all, for the next couple of weeks. Look out for my return on or about March 12.

Blogging Break

Happy Holidays to all. Blogging will be irregular, possibly nonexistent, until January 5.

Back at Last

At long last, we shake off election fever and return to our regularly scheduled programming. (I know, I know, Al Franken is down by just 206 votes with a recount pending and you want to hear about it, but we're not covering election issues today!)

No, today it's back to good old law, particularly the latest Supreme Court opinion. You've probably heard that the Supreme Court ruled for the Navy in a dispute pitting environmental concerns against military preparedness. The Navy wants to conduct training in the use of active sonar to detect diesel-electric submarines, but there's some concern that the sonar would harm marine mammals. The district court hearing the case required the Navy to adopt various measures to mitigate the harm to marine mammals that its training exercises would cause.

The Supreme Court has now vacated the injunction. What's interesting about the case is the reason the Court chose to hang its opinion on. The Court doesn't disturb the district court's finding that the plaintiffs are likely to succeed on their claim that the Navy violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement. Instead, the Court says that even assuming the plaintiffs will win on this claim, the district court erred in issuing injunctive relief in their favor. The Court reminds us that injunctive relief is an "extraordinary remedy," and that, before awarding it, a court is always supposed to balance the competing harms to the parties and to the public interest. Even if you show a violation of law, you never have an absolute right to injunctive relief.

Here, the Court said, the harm to the Navy's preparedness exercises, and to the public interest in military preparedness, outweighs the interest of the plaintiffs in avoiding harm to marine mammals. It's difficult to gauge the validity of the Court's holding without plunging deeply into the record, but the case is an interesting reminder that you face many obstacles if you actually want the law enforced. Even when you show a violation, you have to convince a court that enforcement is actually a good idea.

Election Wrap-Up

Faithful readers, I know that you have been disappointed by the lack of blogging since the election, but I had to leave immediately afterward for a conference in Michigan. But I'm back now, so let me just say . . .

YES WE DID!

How exciting. Election night was really amazing -- I've never seen anything like it in DC. When the networks called the election for Obama at 11:00 pm, people poured out into the street and were dancing, singing, chanting, and hugging random strangers for hours. I remember that people were happy in 1992, when Bill Clinton won -- and that was after 12 years of Republicans in the White House -- but it was nothing like this. DC is excited. We're all looking forward to the new administration with great anticipation.

I'm looking forward to it myself, and also to returning this blog to its roots. This isn't really meant to be an all-politics, all-the-time blog, but I do tend to get a little distracted in the time leading up to a presidential election. Hopefully blogging can resume more normally now.

But we are allowed to be excited.

Another Good One

This blog is not meant to be a collection of jokes, but I just e-mailed some friends to wish them a happy 5769 (the number of the new year according to the Jewish calendar), and one of them wrote back:

"Thanx. You know what drives me crazy? I'm gonna still be writing 5768 on all my checks for weeks. "

I laughed out loud.

Gotta run, the market is crashing.

Unclear on the Concept

The New York Times reports today on a 20-year-old blogger named Brandon Dilbeck who received an e-mail from Comcast after complaining about Comcast on his blog. Comcast employee Frank Eliason thanked him for his feedback and said the company was working on the issue.

Dilbeck's response? He found it all "a bit creepy." “The rest of his e-mail may as well have read, ‘Big Brother is watching you,’ ” he said.

Hello? It's a blog. You wrote your complaint about Comcast and you posted it on the Internet. You wanted everyone to read it. And now you're upset that somebody did?

Another blog called Contempt for the World posted this similar complaint called "Comcast is Watching Us," which calls Comcast's practice of leaving comments on blogs something that " seems to toe the line between concerned and creepy."

Again, what on earth do bloggers expect? These complaints hark back to stories about people who get fired for blogging. Of course there are lots of differing details in these stories, and it matters what was posted, and whether someone is fired for actual inappropriate material or just for having a blog at all, as some claim, but a basic theme seems to occupy these stories: did you not think anyone would read it? Do you think there's a legal privilege that protects you against consequences for anything you post? Did you imagine that the Internet is a separate universe that doesn't intersect the real universe?

Perhaps Brandon did. “It feels like nobody ever really reads my blog,” he told the Times.

Obviously, I like blogs. But some people seem unclear on the concept. When you post something on the Internet, you want people to read it. It's a little much to complain when somebody does.

Over the Top

Just a short, self-aggrandizing note: sometime late yesterday, my website had its 100,000th visitor. That doesn't count blog readers, who are tracked separately.

The great majority of the visitors are interested in my income tax pages. Interest waxes and wanes with the calendar. During tax season, the pages typically get about 500 hits from 200-300 visitors. This time of year 100-200 visitors a day is the norm. The daily traffic also serves as a barometer of events in the tax protestor world: when it shoots up, I know something is happening. I had nearly 1600 visitors the day Ed and Elaine Brown were arrested. Although there are false positives: nearly 600 visitors showed up this Sunday, but the only apparent reason is that a link to the pages that appeared on a popular discussion board.

I never imagined that proving that there really is a law requiring people to pay income tax would be my most public face. But there it is -- apparently there are a lot of people out there (100,000 or more) who need guidance on this issue. I'm happy to provide it.