The Volokh Conspiracy

As I noted yesterday, the Institute for Justice created the Center for Judicial Engagement in response to our belief that America has more government today than the Constitution authorizes and that courts are systematically failing to enforce constitutional limits on government power. A significant factor in that underenforcement may well be the drumbeat accusations of “judicial activism” emanating from the right and the left, often unconnected with any specific court ruling.

Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.

Those who favor restraint often accuse the courts of “judicial activism,” a nebulous epithet that packs a powerful rhetorical punch with very little content. For example, Arlen Specter famously claimed the Supreme Court “has been eating Congress’s lunch by invalidating legislation with judicial activism.” But he identified no specific cases and appears instead to have been making an essentially quantitative assertion: namely, that the Supreme Court inappropriately strikes down legislation with such frequency as to impair the legitimate policymaking efforts of Congress.

The Institute for Justice’s Center for Judicial Engagement sought to evaluate that claim by comparing the total number of laws and regulations enacted over the past several decades with the total number struck down by the Supreme Court. As documented in the “Government Unchecked” study about which Jonathan Adler posted here two weeks ago, the data do not support Senator Specter’s claim. To the contrary, the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.

As Professor Adler and others pointed out, it is difficult to objectively measure the Supreme Court’s activity in this fashion. But the point of the Government Unchecked report was not to establish an affirmative position regarding so-called “judicial activism”; rather, the point was to evaluate the assertion, advanced by Senator Specter and others, that the Supreme Court is systematically thwarting Congress’s legitimate policymaking efforts. The report found that in comparison to the vast quantity of laws passed, the Court is not “eating Congress’s lunch.” It is barely sweeping up the crumbs.

Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of “judicial activism” to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of “judicial activism” to specific cases, which very few of them do.

Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.

Specific instances of judicial abdication abound, and I would include as particularly clear examples the Supreme Court’s interpretations of Congress’s Commerce-Clause power in Wickard and Raich; Home Building & Loan Ass’n v. Blaisdell, which reduced the Contracts Clause to a practical nullity; Kelo v. City of New London (argued by my colleague Scott Bullock), which did the same for the public use provision of the Fifth Amendment; and of course the Slaughter-House Cases, which essentially deleted the Privileges or Immunities Clause from the Fourteenth Amendment and held that the Amendment itself effected no meaningful change in the balance of power between the states and the federal government with respect to the enforcement of civil rights — a holding that, as several of my colleagues and I explain in this new Center for Judicial Engagement video, was self-evidently wrong at the time and continues to warp the Court’s Fourteenth Amendment jurisprudence to this day.

Thomas Jefferson warned that “the natural progress of things is for liberty to yield, and government to gain ground.” It was not a casual observation. But somewhere along the way, our courts seem to have stopped heeding it.

UPDATE: I meant to include this link to a podcast recorded by my colleague Steve Simpson and I in which we discuss the Government Unchecked study and respond to various criticisms.

An interesting segment, and one that features commentary from the likes of blogfather Eugene, Ed Whelan, Tom Goldstein, and Charles Fried.

Frank Kameny, whose name was practically a synonym for pioneering gay civil-rights leadership, died today at his home in Washington, D.C., at the age of 86.  One news account summarized some of his work:

Kameny’s beginnings in advocacy work came after he was fired from his job as an astronomer for the Army Map Service in 1957. He challenged the firing, though, and took the case all the way to the U.S. Supreme Court. Although the court declined to hear the case, an activist was born.

Kameny went on to become one of the leading advocates for lesbian and gay equality in the years before — and since — Stonewall. In 1961, he co-founded the Mattachine Society of Washington. In 1965, he and others with the group famously picketed the White House in shirts and ties, sending a letter to the White House explaining their presence.

Kameny, along with Barbara Gittings, successfully worked with others to convince the American Psychiatric Association to remove homosexuality from its list of disorders in 1973. The next year, he and Gittings served as counsel to Otis Fancis Tabler, Jr., successfully keeping the Defense Department employee from having his security clearance revoked due to being gay.

He filed the first gay-rights brief in the Supreme Court, in his own federal discharge case, in 1961.  He lived to see not only the end of the ban on federal employment for gays and lesbians, but the decriminalization of private sexual acts between adults of the same sex, the demedicalization of homosexuality by the APA’s decision in 1973, the enactment of laws to protect people from discrimination in employment, housing, education, and medical care, the beginning of gay marriage, and recently the end of “Don’t Ask, Don’t Tell.”  (He served in World War II.) A slogan, coined by him in the 1960s, was “Gay is Good.” Not O.K. or tolerable, but good.  He once sent the police chief a letter inviting him to have sex with Frank at Frank’s home at a select hour. He hoped the police would come arrest him, permitting him to challenge the Virginia sodomy law.  They didn’t take that bait, but the few remaining sodomy laws were declared unconstitutional in 2003.  No small amount of each of these changes was directly attributable or traceable to Kameny. 

I had the honor to meet Frank on a couple of occasions over the past ten years.  He was cantankerous, had a mischevious smile, and was deliberately provocative.  He didn’t sugarcoat anything or consider the political effect of what he said or did  He lived his life openly and honestly, a heroic act for someone of his time.  He constantly reminded you not to direct your persuasion inward toward those who agree with you, but outward toward those who aren’t yet convinced.  His work showed that the greatest constitutional friend of gays and lesbians has been the First Amendment.

He was the last lion, a living link to an entire era of gay male activism that has now expired. But the effects of what he did — which can be seen in the happier and freer lives of millions of people — will be felt long after him.

Like co-blogger Eugene Volokh, I read and liked Lev Grossman’s Magicians series. It has interesting ideas and strong characterization. Some have compared the series to J.K. Rowling’s Harry Potter book, because part of it is set at a school for aspiring wizards. The real parallel, however, is with C.S. Lewis’ Narnia books. Much of the plot is taken up with the protagonists’ efforts to find a Narnia-like parallel world called Fillory. Grossman addresses the question of what would happen if some of the humans entering Narnia were more willing to abuse their power and refused to go home to Earth after completing their quests. Grossman weaves an interesting and fine line between building on Lewis’ vision and critiquing it. He is certainly superior to Lewis in terms of character development and style, though his work is necessarily less original because partly derivative of its predecessor. Overall, Grossman’s series is a fine addition to the new trend of darker, grittier fantasy novels which includes the work of George R.R. Martin, Joe Abercrombie, and others. On balance, I would actually say that Grossman is actually less pessimistic than some of these other writers.

I do have a few reservations about the series. The principal one is that Grossman, like Suzanne Collins, is often weak on world-building. Like the Harry Potter series, Grossman’s world features a hidden society of magicians who wield enormous power yet are unknown to normal humans, whose history they have little effect on. In the Potter series, however, there is a very powerful wizard government that prevents wizards from revealing their powers to Muggles and trying to dominate the world. The magical authorities in Grossman’s world are a lot weaker. It therefore strains credulity to believe that powerful sorcerers have been around for centuries, yet have never revealed themselves to normal humans, seized political power, or had any impact on history. Grossman’s Narnia analogue is also poorly developed and there is little sense of how this society functions and why we should care about it. World-building was also a relative weakness of C.S. Lewis’ Narnia books, and it’s possible that the thin development of Fillory is an intentional commentary on Lewis’ original (though Fillory is actually even less well developed than Narnia was).

Other reviewers have also commented negatively on the obnoxious and unsympathetic personalities of most of the protagonists. This bothers me less, as their stories are still interesting. Nonetheless, until late in the first book, the problems faced by the protagonists seem so trivial compared to the enormous privileges they derive from their status as magicians that it’s hard to enter into their concerns as much as the author intends us to do. This is much less of a problem in the last part of the first book and in the second, as the characters mature somewhat and start to face more serious issues.

Overall, I think it’s a very good fantasy series, but not quite a great one.

UPDATE: Sci Fi/Fantasy critic Abigail Nussbaum has a more negative take on the first book here. I agree with some of her points, but by no means all.

When the revolution that eventually overthrew Egyptian dictator Hosni Mubarak began, I warned that the end result could easily be a government as bad or worse than Mubarak’s was. In a revolutionary situation, liberal democratic forces often get outmaneuvered by more ruthless and better-organized opponents — even if majority public opinion would prefer a liberal regime. In Egypt, I pointed out, the establishment of a repressive regime is made more likely by the fact that public opinion is in may ways extremely illiberal. Unfortunately, this fear has so far been justified by events. As Thanassis Cambanis explains in the Atlantic, the new Egyptian government is well on its way to becoming a military dictatorship in some ways more repressive than Mubarak’s regime:

It’s hard to escape the feeling that Egypt’s January 25 Revolution is being eaten alive. It’s too soon to write it off, and too soon to predict that a full-fledged military dictatorship will rule the country for the foreseeable future; but that grisly outcome now is a solid possibility, perhaps as likely an outcome as a liberal, civilian Egypt or an authoritarian republic.

Eight months after a euphoric wave of people power stunned Egypt’s complacent and abusive elite, it’s possible to see the clear outlines of the players competing to take over from Mubarak and his circle, and to assess the likely outcomes. The scorecard is distasteful. The uprising — it can’t yet be fairly termed a revolution — forced the regime to jettison its CEO, Hosni Mubarak, in order to preserve its own prerogatives.

In the last two months, that regime has made clear how strong it feels. In September, in quick succession the military extended the hated state of emergency for another year, effectively rendering any notion of rule of law in Egypt meaningless; unilaterally published election rules that favor wealthy incumbents and remnants of the old regime, and that disadvantage new, post-Mubarak competitors; indefinitely postponed presidential elections, and refused any timetable for handing over authority to a civilian; reinstated full media censorship, threatening television stations and imposing a gag order on all reporting about the military; and the country’s authoritarian ruler, Field Marshal Mohammed Hussein Tantawi, unleashed a personal public relations campaign on state television odiously reminiscent of Mubarak’s image-making. Furthermore, the government advanced its investigation of “illegal NGOs” that allegedly took foreign money, including virtually every important and independent dissident organization.

Taken together, these moves show a military junta fully confident that it can impose measures of control as harsh — or, in the case of widespread military trials for civilians, harsher — than those employed by Mubarak.

As Cambanis recognizes, the new military rulers have not yet fully consolidated their power. So a more liberal outcome is still possible. But its likelihood is gradually diminishing. Moreover, many of the military government’s opponents are far from being liberal democrats themselves. Some of them are radical Islamists who, if they prevail, would establish a significantly more oppressive government than the generals — especially with respect to women and religious minorities.

Some dictatorships are so bad that their overthrow will almost always be a net positive. The new regime can hardly avoid being a lesser evil than the old when the latter is a totalitarian state and/or engaging in mass murder. Consider such cases as Adolf Hitler or Pol Pot. Mubarak, however, was basically a run of the mill despot who repressed political opponents but was not a totalitarian and did not commit mass murder. The overthrow of that kind of regime often leads to the establishment of a worse one. Such an outcome is also a real danger in Libya, where radical Islamists are among the leaders of the victorious anti-Gadhafi rebels.

Last month I blogged about how much I liked Lev Grossman’s The Magicians; I’ve now read the sequel, The Magician King, and liked it even more. These are excellent books — as I mentioned earlier, modern fantasy, fresh and very well executed, both in the general plot line and the word-by-word writing. I highly recommend them both.

After a couple of posts on the Durbin Amendment, it has become clear that not everyone has read and familiarized themselves with the Durbin Amendment.  So if I may, allow me to lay out a few basic principles:

1.  The Durbin Amendment Imposes Price Controls, Not Transparency: This is the key misunderstanding–by its terms, the Durbin Amendment requires the Federal Reserve to set the allowable price of interchange fees at the incremental costs of processing debit transactions.  So it expressly prohibits recovery for the fixed costs of running a debit program (operating branches, customer service, etc.) and prohibits a normal return on investments in running the debit card program.  In that sense it turns debit cards into something more like checks, where the effective interchange fee is set a zero and the banks and consumers have to bear the costs of checks (so, for example, you are issued your debit card for free but you have to pay to buy your own checks).  The argument also ignores the obvious threshold point that payments are Coasian by nature, so costs are reciprocal, so the whole concept of “making costs transparent” by arbitrarily reallocating costs when the costs arise reciprocally is simply a logical error.

2.  We Already Have Transparency For Payment Cards: Current law already permits merchants to discount for cash and merchants are permitted to steer consumers to alternative payment methods if they like.  So if it is just about transparency, we already have that.

3.  We Don’t Require Transparency for Anything Else: Right now many merchants offer “free parking,” which requires those who take public transportation or walk to a store to subsidize those who drive.  Presumably merchants offer free parking because it increases their overall profitability (the same reason they take payment cards, of course).  To justify the Durbin Amendment on the ground of transparency would be analogous to argue that the government should not only require the disclosure of how much free parking costs, but to actually prohibit stores from offering free parking.  We also don’t require merchants to disclose the full costs of paying with cash (safes, employee theft, employee time spent handling and counting cash, armored cars, etc.)–costs that payment card payers have to subsidize for cash payers.

4.  Payment Cards are Two-Sided Markets: They are like newspapers, where the advertisers subsidize the readers.  In fact, like debit cards, many newspapers are entirely advertising supported and are given away for free (magazines are sold at subscription rates much below their costs).  If, for example, the government imposed price controls on what The Onion could charge display advertisers, what would happen?  First, they might consider charging readers instead of giving it away for free.  Second, they would try to shift advertisers to unregulated margins, such as classified advertising or online.  Third, they might reduce their services to reduce costs, such as reducing their distribution.  There is nothing anomalous about offering a product for free if the cost is recovered somewhere else in the system.  And while it is possible that consumers as a group might be better off if the government prohibited free parking or imposed price controls on newspaper advertising rates, it certainly isn’t obvious and would require actual economic analysis.  Transparency in and of itself would have virtually nothing to do with the question of whether the pre-price controls price structure was more efficient that the post-price controls structure.  To the question of how it could be profitable to offer free debit cards pre-Durbin, this is the explanation–think of how it is economic to produce a free newspaper (free to readers but not advertisers).

5.  The Antitrust Rationale for the Durbin Amendment is Completely Wrong: I discussed this in a Washington Times column some time ago.  Because payment cards are a two-sided market, in competitive equilibrium, saying interchange fees for merchants are “too high” is identical to saying that fees to consumers are “too low.”  In Canada, for example, where interchange fees on debit cards are zero, consumers pay high costs for debit cards–higher than the new $5 Bank of America fees.

The problem, if there is one, is not a lack of competition, but rather that much of the competition is for consumers, not just for merchants.  Payment card networks seek to balance these two sides of the market through the prices that they charge to consumers and merchants in order to maximize the overall value of the network.  As a theoretical matter this can result in prices being too low for consumers and too high for merchants.  As a theoretical matter it can also result in prices being just right for both or too high for consumers and too low for merchants.  It all depends on the assumptions and elasticities of the players in the system.  So the theoretical argument is interesting, but to date, undetermined as an a priori matter.  As an empirical matter the question is equally unsettled.  What we do know, though, is that there are network externalities from payment cards and there are positive social externalities from bringing people into the mainstream banking system and reducing reliance on cash (which facilitates crime and tax evasion, for example).  If theoretical or empirical studies eventually do establish that market competition leads to market failure, then we’ve got a different question.  But based on current theory and empirics there simply is no such consensus.

In fact, this was the decision regulators made in Australia.  There it was determined that consumer prices for payment cards were too low and that as a result consumers inefficiently overused payment cards.  So interchange fee price controls were specifically intended to reduce merchant costs and raise consumer costs with the goal of reducing card use and increasing use of paper payments.  And by general consensus prices did go up for consumers–annual fees went up on credit cards for example and rewards were reduced–and costs for merchants went down.  But there is no evidence of any measurable cost savings being passed on to consumers yet in the form of lower prices or higher quality and there has not been even an effort to try to establish whether any purported retail price reductions to consumers were larger than the increased banking prices.  It is also not clear that use of payment cards actually declined even though consumers now pay more and get less from using them.  Overall, the Australian central bank seems to believe that that the overall market response–higher bank fees, lower merchant costs, and an assumption of retail pass-through despite the lack of evidence or estimate of size–was a good thing.  I think that the overall mix of intended and unintended consequences was a bad thing for efficiency and appears to largely have resulted in a wealth transfer from consumers to merchants (driven largely by all of the relevant elasticities of the players in the various interrelated markets).  This result of being largely a wealth transfer rather than an efficiency effect is seen as one likely outcome in markets where use and acceptance of payment cards is already high.  This doesn’t even consider the negative social effects of swelling the ranks of the unbanked.

But, unlike the justifications that are offered for the Durbin Amendment, at least the Australian case was theoretically coherent.  By which I mean that they acknowledged the unintended consequences identified by theory and practice and decided to do it anyway.  I disagree.  But if there is an argument for interchange price controls it is the one adopted by the Australians, not the ones that have been offered for the Durbin Amendment.

6.  Even If There is a Market Failure, It Doesn’t Justify The Below-Cost Pricing of the Durbin Amendment: But note that even if one adopts the Australian argument that costs are too low to consumers and too high to merchants, it still doesn’t support the precise price control of Durbin, which excludes fixed costs and a normal return.  If one is convinced that there is a market failure (and as I indicated, I’m not persuaded of that), it still doesn’t justify requiring below–cost pricing.  It would at least permit full-cost pricing (like traditional utility rate regulation).

First, I’d like to thank Eugene for the opportunity to guest-blog about judicial engagement this week.

The Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

While reasonable minds may differ about whether it is possible to identify the government’s “true” ends or determine whether there is an appropriate “fit” between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers. If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

And it’s not just the rational basis test. Even when supposedly applying more robust standards of review, judges frequently accept implausible justifications and unsupported factual assertions from the government. Examples abound in post–Heller gun litigation. Federalism is another problem area. As suggested by the Eleventh Circuit’s admonition in striking down the Affordable Care Act’s individual mandate, when Congress approaches the outer limits of its power, “the Constitution requires judicial engagement, not judicial abdication.”

Judicial engagement is not a call for judges to strike down laws willy-nilly. Rather, it is a call for judges to recognize the importance of constitutionally limited government and to maintain a basic level of analytical consistency. Judges should refuse to ignore evidence, invent facts, or accept implausible justifications in some constitutional settings that they would flatly — and correctly — reject in others.

In today’s Washington Post, Senate Majority Leader Harry Reid (D-NV) responds to charges that last week’s majority vote to change Senate rules and overturn a ruling by the chair constituted going “nuclear.”

The Senate rule change we made last week has been inaccurately described . . . as a resort to the “nuclear option.” But rather than a nuclear option that would have forever altered the character of the Senate by limiting the minority’s ability to challenge legislation, the change we made Thursday was a return to order. . . .

The Republicans used a new stall tactic last week, one that is used infrequently in the history of the Senate. It was an attempt to make cloture meaningless — to say that the road to passage must include a vote-a-rama of unrelated, purely political votes.

This is the practice we voted to change. The precedent we set merely returns the Senate to the regular order and only affects the ability of the minority to obstruct and delay after more than 60 senators have voted to end discussion.

Now, 60 votes to end debate will mean debate actually ends, as the rules of the Senate intended. We restored the balance between individual rights and comity in the rules of the Senate.

I missed this quote from Barney Frank last week in response to BoA’s customers being Durbinized with new bank fees:

The Massachusetts Democrat, who co-sponsored the Dodd-Frank financial reform bill, said he still supports opposing a decision by congressional lawmakers to include the fee crackdown in the legislation.

“The banks will charge you more, and I don’t think the retailers are going to charge you less, which is why I didn’t want to put it in the first place,” Mr. Frank explained.

Some of the savings to retailers, of course, will be passed through to consumers (I assume Frank wasn’t suggesting there’d be no pass-through at all by retailers).  The real question is how much and how quickly the savings will be passed through by retailers versus the incidence and speed of pass-through in higher fees to bank customers (the question is one of incidence analysis). Based on available theory and empirical evidence it seems almost certain that the pass-through to bank customers in higher prices and lower quality will be larger and certainly faster (we already know the second part) than any potential savings to retailers.  Home Depot, of course, said that it expected to reduce its costs $35 million per year from Durbin and made no allowance or qualification for pass-through to its customers.  This estimate appears to be a static estimate and so doesn’t count  the inevitable substitution of consumers to greater use of credit and prepaid cards, which will wipe out some of this saving, as well as any effect of increased liquidity constraints on consumers from reduced use of debit cards.

Of course, even if the pass-through were largely equal (which it probably isn’t) that leaves aside what for me is an even more important issue–perhaps in the end Home Depot’s customers will save 2 cents on a 2 x 4 but that seems like small solace to the hundreds of thousands of low-income people who will be driven out of the mainstream banking system by Durbin fees.  Not to mention the social cost of deterring the continued spread of electronic payments and increased reliance on paper-based payment systems (including all the social costs of cash).

Update: Commenters have observed that my initial post title might be subject to being misconstrued.  That honestly never crossed my mind and I certainly didn’t intend that.  I apologize and have changed the title of the post accordingly.

Yesterday the 2011 Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Thomas Sargent and Christopher Sims. In the WSJ, David Henderson comments:

On Monday the Nobel Committee announced the winners of the 2011 Nobel Prize in economics: Thomas J. Sargent of New York University and Stanford University’s Hoover Institution, and Christopher A. Sims of Princeton University. The award was given for “their empirical research on cause and effect in the macroeconomy.”

The Swedish economists announcing the award emphasized, correctly, the importance of Messrs. Sargent’s and Sims’s thinking about the role people’s expectations play in economic decision making and the larger economy. But what they failed to mention is that their work has also offered empirical evidence that the school of thought known as Keynesian economics—which believes that government can turn a flagging economy around with the right combination of fiscal “stimulus” (generally government spending) and monetary policy—is fallible.

For more on the latest Nobel laureates, Tyler Cowen comments on the work of Sargent and Sims at Marginal Revolution. And here’s more from Alex Tabarrok and Steve Hanke.

Over the last several years, various courts have held — in cases such as Dendrite Int’l, Inc. v. Doe No. 3 and Doe v. Cahill — that the First Amendment provides substantial, though limited, protection against subpoenas aimed at unmasking anonymous commenters; for more details on that protection, see this EFF analysis. But last week, Doe v. United States (N.D. Cal. Oct. 4, 2011) held that such rules generally do not apply to government investigations, here by the SEC, as opposed to investigations by private litigants. I just thought this was worth noting for readers who follow such matters.

I’m delighted to report that Clark Neily of the Institute for Justice will be guest-blogging this week, about IJ’s “judicial engagement” project. IJ is one of the leading libertarian public interest law firms in the country, and I’ve always much respected their work.

As readers of this blog doubtless know, both conservatives and libertarians are split on the degree to which courts should act aggressively in reviewing legislation for constitutionality, as opposed to deferring to legislative action, especially in the area of so-called “substantive due process.” My sense is that different bloggers on this blog themselves disagree on this subject; and I suspect that I wouldn’t always agree with IJ’s broadest positions on this. But I much look forward to Clark’s explanation of IJ’s views, and I think our readers will find them interesting as well.

I’ll be on a The Second Amendment in the Courts After Heller and McDonald panel Nov. 12, 2011 at the Appellate Judges Education Institute Summit in Washington, D.C. The conference (cohosted by the ABA Judicial Division Appellate Judges Conference and SMU School of Law) generally sounds very interesting, and is open to lawyers as well as to judges and staff attorneys. The conference speakers include Justice Sotomayor, Scott Turow, and many illustrious judges, professors, and practitioners (including our own John Elwood). For more, including the full agenda, see here.

On September 30, Judge Doherty of the United States District Court for the Western District of Louisiana handed down a decision in Vidrine v. United States awarding $1.7 million in damages for a malicious prosecution. The facts of what happened are simply appalling, and they deserve wider attention.

First, the background. Hubert Vidrine had been charged with knowingly storing hazardous waste materials without a permit for storing used oil at a refinery site. But there were two big problems with the case: It turned out that there was little evidence that the oil counted as hazardous waste, and no evidence that Vidrine had knowledge of what was happening. The government ended up moving to dismiss its own case, and later Vidrine filed an action under the Federal Tort Claims Act alleging that he was the victim of malicious prosecution. The case of malicious prosecution focused on misconduct by EPA Technical and Regulatory Expert Keith Phillips, who was one of the agents on the case and was responsible for developing the case against Vidrine.

In her decision, Judge Doherty found that Agent Phillips intentionally misled the prosecutor, his bosses, and the court as to the evidence against Vidrine, all to enable a prosecution against Vidrine even though there was no real evidence against him. Judge Doherty writes:

Had the AUSA had been given all the facts by Phillips and Barnhill (both good and bad, and excluding half-truths), or had the [agent’s formal report of his interviews] been more complete and timely provided to the AUSA, and had a reasonable interpretation of the applicable regulations been provided to the AUSA and the grand jury by Phillips, and had Agent Phillips testified truthfully to the grand jury, this Court finds a very different result likely would have ensued: Hubert Vidrine would not have been indicted. For reasons that will never be known by anyone other than Agent Phillips, Agent Phillips was not content to merely “gather the facts and let the facts themselves either support or not support the indictment” as he testified one should do. Rather, Agent Phillips, either deliberately, or with reckless disregard for the truth, provided false testimony to the grand jury in order to secure an indictment against Hubert Vidrine, on at least two occasions, and permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations.

What ultimately secured an indictment against Hubert Vidrine was not Mike Franklin, as Keith Phillips testified — it was Keith Phillips’ and Phillips’ “tweaking” of the Mike Franklin story to create facts, as Agent Phillips wanted to see them. Given the inherent problems, omissions and glaringly obvious weakness of Mike Franklin and his information, Agent Phillips and Barnhill’s omission of those problems, and Phillips’ dogged pursuit of Hubert Vidrine, this Court is left with the question, “Why?”

Perhaps the most remarkable part of the Vidrine malicious prosecution case is Judge Doherty’s answer to the “why” question. Here’s the eye-popping two paragraphs, with emphasis added:

One of the more distressing allegations made at trial, involved allegations of Agent Phillips’ sexual, extra-marital affair (and its subsequent “cover up”) with Agent Barnhill. The evidence strongly indicated Agent Phillips deliberately used his investigation and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his extra-marital affair with Agent Barnhill, and perhaps, to exert improper influence over the manner in which she investigated and reported upon this case. Agent Barnhill candidly testified that she and Agent Phillips began a physical, sexual relationship while assigned to this matter, which lasted from approximately 1996 until January or February 2001. Agent Barnhill testified she and Agent Phillips were only physically intimate when working together on the Vidrine case — in other words, they did not meet to pursue their sexual relations on occasions when they were not working the case together. Thus, the case granted the opportunity for those rendez-vous, as well as providing justification for Agent Phillips wife.

During the investigation and prosecution, Agent Barnhill, who was single, lived in South Louisiana; Agent Phillips, who was married, lived in Dallas, Texas with his wife. Prior to and at trial, plaintiffs’ counsel consistently argued Agent Phillips used the Vidrine investigation as a cover, excuse and opportunity to facilitate his illicit affair with Agent Barnhill and to hide the affair from his wife. Plaintiffs consistently argued Keith Phillips manufactured a case, both in law and fact, against Hubert Vidrine, and carefully fed the AUSA and his supervisors only the information which would further that end and perpetuate the case, all to promote access to Agent Barnhill and perpetuate and conceal their illicit affair. Regrettably, the Court agrees with plaintiffs: this inappropriate and unprofessional behavior likely was, at least in part (if not in whole) a motivation for Agent Phillips’ continued pursuit of Hubert Vidrine, without probable cause, and certainly with a complete and total reckless disregard of Hubert Vidrine’s rights.

Wow!

The Court concludes:

[T]his court finds Agent Phillips testimony, conduct and documentation illustrate a deliberate patten of disregard for oaths taken, truth of the matter involved, wholly lacking in intellectual honesty, and exhibiting a deliberate intent to mislead all involved, particularly the prosecutors with whom he worked and who were relying upon his investigation and technical expertise in order to evaluate their case. Agent Phillips has displayed the very worst example of abuse and misuse of the power and trust bestowed upon a governmental agent, and has brought great shame upon the agency which had entrusted him with that power, responsibility, and authority.

Wow again. Kudos to the Washington Legal Foundation for its pro bono work representing Vidrine.

UPDATE: I see that Agent Phillips received his due in the case. According to a DOJ press release dated October 4, Phillips recent pled guilty to perjury and obstruction:

A former special agent with the Environmental Protection Agency (EPA), Criminal Investigation Division (CID) in Dallas has pleaded guilty to lying under oath and obstructing justice, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division and Inspector General Arthur A. Elkins Jr. of the EPA’s Office of the Inspector General (OIG).

Keith Phillips, 61, of Kent, Texas, pleaded guilty yesterday before U.S. District Judge Richard T. Haik Sr. in the Western District of Louisiana to a two-count indictment charging him with obstruction of justice and perjury. The charges stemmed from his sworn testimony in relation to a case that was pending in the Western District of Louisiana.

. . . Phillips faces a maximum of 10 years in prison and a fine of $250,000 on the obstruction of justice count, and five years in prison and a fine of $250,000 on the perjury count. A sentencing date has not yet been scheduled by the court.

UCLA Law School’s Sanela Daniela Jenkins Human Rights Project has a special joint online forum with the International Criminal Court office of the prosecutor, which is currently running commentary on the question of prevention, and how the ICC can maximize its crime prevention impact. It features contributions from a variety of experts from a variety of perspectives — Tomer Broude, Bill Burke-White, Richard Goldstone, David Scheffer, and me. The initiative is run by UCLA professor Richard Steinberg.

The forum can be found here. Readers are invited to post comments, and forum contributors are also invited to respond and undertake a discussion. The contributions on this crucial question are relatively short, readable essays, and should be of interest to the general public, students at the undergraduate and graduate level, journalists, public policy specialists and others. Congratulations to Professor Steinberg for pulling it together, and I am certainly honored to take part.

The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. Meanwhile, over the summer, California state legislators passed SB 914, a bill limiting searches incident to arrest in California. Just today, however, California Governor Jerry Brown vetoed the bill and released the following statement:

This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.

I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux for the reasons I developed in this article. In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy. For these reasons, legislatures are much better equipped than courts to strike the balance between security and privacy when technology is in flux.

Perhaps the major disadvantage of legislatively-made search and seizure rules is that the head of the executive branch that oversees law enforcement also generally has the veto power over the legislature’s efforts. The head of the executive branch can therefore block limits on the executive’s own power, at least in some circumstances. I don’t follow California politics much, but I would guess this reality, not institutional advantages of courts and legislature, is what really led to Governor Brown’s veto.

New York Times national security correspondent Scott Shane has an opinion piece in today’s Sunday Times predicting an “arms race” in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:

Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat.

“Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”

By asserting that “we’re” creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit. (The other unstated premise underlying the whole opinion piece is a studiously neutral moral relativism signaled by that otherwise unexamined phrase “perceived enemies.” Does it matter if they are not merely our “perceived” but are our actual enemies?  Irrespective of what one might be entitled to do to them, is it so very difficult to conclude, even in the New York Times, that Anwar al-Awlaki was, in objective terms, our enemy?)

It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US “created” it or could have stopped it, or that something different would have happened had the US not pursued the technology or not used it in the ways it has against non-state terrorist actors. Here are a couple of quick reasons why I don’t find this thesis very persuasive, and what I think the real “arms race” surrounding drones will be. Continue reading ‘What Kind of Drones Arms Race Is Coming?’ »

So concludes constitutional law and national security scholar Philip Bobbitt, in an email comment to Ben Wittes at Lawfare.  Bobbitt is responding to Wittes’ post on a Awlaki-targeting question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane.  Bobbitt here criticizes the policy, as I put it earlier, of conducting “foreign policy-by-leak.”  Here’s a little bit more of the comment, but I commend the whole thing to you at Lawfare.

This is related to what used to so irritate me about the Bush signing statements. I didn’t have a problem with the substance—that a president can refuse to enforce statutory language he deems unconstitutional—but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president’s not explaining his position is rather like an appellate court saying to the parties to a dispute, “You win. You lose. Let’s have lunch.”

On Tuesday I’ll be speaking to the student chapter of the Federalist Society at the University of Michigan Law School.  I’ll present the conservative case for same-sex marriage, during the lunch hour.  Visiting professor Steve Sanders will offer commentary after the speech.

On Thursday I’ll be debating Maggie Gallagher on the proposed amendment to ban same-sex marriages in Minnesota.  The debate will take place at the University of St. Thomas Law School in downtown Minneapolis.  It’ll start at 4:00 p.m. and run about 75 minutes.  It’s free and open to the public, although the law school wants people to register so it can gauge how many to expect.  You can get more details and register here.

The House Judiciary Committee recently passed a bill that would make it a crime for Americans to plan or even discuss any activities abroad that would violate federal drug laws if they occurred in the US — even if the acts in question are completely legal in the countries where they actually take place. Radley Balko has the disturbing details:

The House Judiciary Committee passed a bill yesterday that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act (CSA) — even if the planned activities are legal in the countries where they’re carried out. The new law, sponsored by Judiciary Committee Chairman Rep. Lamar Smith (R-Texas) allows prosecutors to bring conspiracy charges against anyone who discusses, plans or advises someone else to engage in any activity that violates the CSA, the massive federal law that prohibits drugs like marijuana and strictly regulates prescription medication.

“Under this bill, if a young couple plans a wedding in Amsterdam, and as part of the wedding, they plan to buy the bridal party some marijuana, they would be subject to prosecution,” said Bill Piper, director of national affairs for the Drug Policy Alliance, which advocates for reforming the country’s drug laws. “The strange thing is that the purchase of and smoking the marijuana while you’re there wouldn’t be illegal. But this law would make planning the wedding from the U.S. a federal crime.”

If the law passes the full House and then the Senate, it would be illegal for Americans to do things like plan to smoke marijuana in the Netherlands or Portugal, or other countries where pot is legal. As Radley points out, the law would also have a negative impact on medical professionals who work abroad with drugs that are illegal in the US. Hopefully, this ill-conceived bill will die in Congress, perhaps in the Senate. If not, it will be interesting to see whether Obama would be willing to veto it. So far, the president has disappointed civil libertarian supporters who hoped that he would curb the War on Drugs. He has even reneged on his popular campaign promise to end federal medical marijuana prosecutions in states where medical marijuana is legal. Hopefully, this bill will be a bridge too far (or perhaps a joint too far) even for this administration.

Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see is a detailed report on the state practice evinced by NATO forces in the conduct of hostilities in Libya.  My concern is not that there have been war crimes or illegal conduct; I have not heard credible reports of this by NATO forces.  It is, rather, that some of what appeared to be routine targeting decisions by NATO forces in Libya — what to target, under what circumstances, at what risk of civilian harm, use of precision weaponry, etc. — might have been criticized if carried out by the US in Afghanistan.

It seems to me useful for NATO, or at least the US, to take the opportunity to set out exactly what NATO forces in Libya regarded as lawful in targeting, in risks of targeting, in decisions regarding proportionality, knowns and unknowns, for the various NATO forces with their varying precision capabilities.  It is not to make claims of illegality. On the contrary, it is to set out the markers of what NATO’s militaries regard as lawful targeting decisions, as demonstrated through state practice.  It seems to me that the US has a great interest in making a public record of the kinds of things that NATO thought lawful to target.

For that matter, too, it would be useful to make clear the extent to which NATO countries taking part in these hostilities from the air regard the actions by the rebels on the ground — for example, besieging, under aerial attack by NATO forces, the hold-out zones including their trapped civilians — that are made possible by NATO air support, as being the responsibility of NATO forces.  The rebels are NATO’s allied forces; the rebels have been charged with serious violations of the laws of war; to what extent does NATO regard itself as having responsibilities to control and sanction the acts of its allied ground forces?  And if not, should that not be regarded as state practice in regards to the practicalities of state responsibilities for allied forces’ actions?

The LA Times reports on new limitations on school lunches in France:

In an effort to promote healthful eating and, it has been suggested, to protect traditional Gallic cuisine, the French government has banned school and college cafeterias nationwide from offering the American tomato-based condiment with any food but — of all things — French fries. . . .

Moreover, French fries can be offered only once a week, usually with steak hache, or burger. Not clear is whether the food police will send students to detention if they dip their burgers into the ketchup that accompanies their fries.

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing a secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate.

One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here and at Opinio Juris, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked, quite apart from not making available the actual text, is a grave part of the problem here.  If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy.  Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for releasing information on their legal justifications.  It’s good that this information is out there; it is bad that it was put out there through leaks.

Update:  See also this very interesting opinion piece by the New York Times Public Editor, Arthur Brisbane, in the Sunday Times, on the problems of reporting on government policy that proceeds, in essence, by leaks.  As Brisbane says, this puts the Times in the awkward position of appearing to be manipulated to give the government’s statements in order to report the news.  Brisbane was kind enough to quote me:

Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

The President also said that he did not believe “in the literal truth of the creed as it is recited in the orthodox evangelical churches.” He did, however, believe that Jesus had set forth an outstanding system of moral precepts.

Although the general views above were shared by Thomas Jefferson, the President quoted above was William Howard Taft, who served from 1909–13, and later as a very good Chief Justice of the Supreme Court.

Americans today tend to congratulate themselves for being more tolerant and open-minded than their ancestors of a century or two ago. Yet those earlier Americans elected the great Jefferson twice, and elected Taft once. Taft is not today remembered as a great President, but he at least he did much less harm to the United States than the man who succeeded him, Woodrow Wilson.

I find it disgusting that a Gallup Poll found 22% of Americans (18% of Republicans, 19% of Independents, and 27% of Democrats) say that they would not vote for a well-qualified candidate of their party who happened to be a Mormon. That’s actually an increase compared to 17% who gave the same answer in 1967.

If some Christians want to take the theological view that Unitarians, or Mormons, or, for that matter, Catholics are not true Christians, that’s their privilege, and it’s very legitimate source of religious debate. I don’t think that whether a candidate fits a voter’s definition of orthodox Christianity is a legitimate basis for voting for a public official.

Kudos to Mitt Romney, in his speech today at the Values Voters summit, for denouncing the “poisonous language” of Bryan Fischer, another invited speaker at the event, who makes the idiotic claim that the First Amendment was not intended to protect non-Christians.

Anyone who’s read Skating on Stilts knows I am a big believer in using travel data for counterterrorism purposes.  What’s more interesting is that the Obama administration has been just as enthusiastic.  Some of the reasons for its enthusiasm showed up in testimony to the House Homeland Security Committee last week, when the Department of Homeland Security released stories about its use of travel data that I had not seen before. 

Remember Faisal Shahzad, the Times Square bomber who was pulled off a plane at JFK as it was preparing to leave the country?  It turns out that travel data was his nemesis, helping DHS and the FBI track him at every turn:

Early in this investigation, the Federal Bureau of Investigation (FBI) learned of Shahzad‘s cell phone number from a report shared by DHS.  The FBI ran the phone number in their ACS system and was able to connect it to the DHS report. Through good interagency cooperation, the FBI asked DHS if it had encountered any individual who reported this phone number during border crossings.  DHS searched its PNR database for the phone number, identified Shahzad, and learned other information he had provided to DHS.  DHS then provided the additional data to the FBI.  Later, Shahzad attempted to flee the United States, but DHS‘s analysis of departing passenger data identified him before departure and DHS removed him from the aircraft.

Najibullah Zazi was the guy who rented a truck and drove cross country to set off explosives in the New York City subway. It turns out we used travel data to identify the scope of the conspiracy and to interrogate him. According Indian news sources, Tom Bush, testifying for Customs and Border Protection, revealed that:

“Using PNR data, DHS and CBP worked closely with the FBI to crosswalk the names of his co-travelers against open counter-terrorism cases inside the United States and determined his co-travelers were being trained during the same trips to Pakistan in the same training camps. Zazi was arrested on September 19th, 2009, and the information from his PNR records were used in his questioning and his indictment. Zazi pled guilty in February 2010.”

Particularly impressive was the use of travel data to identify David Headley, the American who did reconnaissance work for the Mumbai attacks

“Law enforcement intelligence information implicated a specific person in the plotting of a 2008 Mumbai attack, as well as the possible attacks against a Danish newspaper office. … Starting with a very common first name, David, a partial travel itinerary and a very vague travel timeframe, CBP was able to review its PNR data in connection with other DHS databases…. Within 24 hours, CBP was able to provide the FBI with the person’s full name, address, passport number, travel history and other information useful to law enforcement pursuing him. You may know that person as David Headley, who pled guilty in March 2010.”

In short, travel data has been crucial in keeping Americans alive during the ten years since 9/11.  And during the same decade, the European Union has been doing everything it can to cripple our use of travel data.  It’s forced four rounds of negotiation on privacy standards for travel data and then has blown up every deal it’s reached, always threatening to cut off the flow of data if the US doesn’t keep talking.

With that record, you’d be forgiven for wondering whether Europe’s elite actually thinks it’s a good thing to keep Americans alive.

In fact, with that record, you’d probably be forgiven if you stopped wondering.

Ten of Arizona’s 15 county sheriffs, including Democrats and Republicans, have called for the appointment of a federal special prosecutor in the Fast & Furious scandal.

An excellent graph at No Lawyers, Only Guns and Money, shows the story. We’ve come a long way, baby.

And there’s still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so “may issue” amounts to “will not issue.” It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right.

That’s part of the Louisville Human Relations Commission complaint filed by the Lexington Fair Housing Council (a local nonprofit) last year against Teen Challenge; the nonprofit also alleged that Teen Challenge discriminates based on sexual orientation in housing. The full allegation:

The Respondent provides housing in Lexington, Kentucky that is open to individuals of all religions, but teaches against homosexuality and has a preference for [individuals] who are not gay.

The director of another fair housing of advocacy group in the area echoed this view, according to the Louisville Courier-Journal, Apr. 13, 2011 (payment required):

“I do think they’re in violation of the Fairness Ordinance,” [said Chris Hartman, the director of another fair housing advocacy group]. Discrimination could be in the form of trying to persuade women to change their lives or harassing them “by preaching against it,” he said....

As of April, the complaint was still pending with the Human Relations Commission; I’m trying to figure out if more has happened to it since. [UPDATE, Oct. 11, 2011: I’ve confirmed that the complaint is still pending.]

UPDATE: Just to make it clear, my concern here is with the claim that the very teachings against homosexuality are illegal in a residential setting such as this one; I think that it would violate the Free Speech Clause for the Commission to hold that such teachings violate the law. Requiring Teen Challenge not to discriminate based on sexual orientation in selecting residents is a separate matter. Such a requirement would not violate the Free Speech Clause; nor would it violate the Free Exercise Clause, even if Teen Challenge claimed that it felt a religious obligation to exclude lesbians (though in that case it might violate the Kentucky Constitution’s religious freedom guarantee, if Kentucky courts decide to interpret that provision as securing a limited right to religious exemptions from generally applicable laws).

A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), which finds that defendants’ Elf off the Shelf parody is likely not an infringement of the copyright or trademark in plaintiffs’ Elf on the Shelf. The judge, by the way — Amy Totenberg — is the sister of NPR legal affairs correspondent Nina Totenberg.

Yesterday, the Supreme Court held oral arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a key religious freedom case that Eugene Volokh blogged about here. SCOTUSblog has a round-up of coverage of the argument. I found this exchange particularly telling, as the federal government did itself no favors by taking the extreme position that the Free Exercise Clause of the First Amendment isn’t even implicated when the state uses antidiscrimination law to challenge the firing of church employees — even if the latter are ministers or have religious duties:

At one point, Justice Elena Kagan asked Ms. Kruger whether she believed that a church has a right grounded in First Amendment religious protections to hire and fire employees without government interference.

Kruger answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.

“We don’t see that line of church autonomy principles in the religion clause jurisprudence as such,” Kruger replied. “We see it as a question of freedom of association.”

The position surprised several justices, including Justice Kagan, the Obama administration’s former solicitor general, who said she found the comment “amazing.” After the hearing, one representative of a religious association called the government’s position a “full frontal assault on religious liberty.”

Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything “special about the fact that the people involved in this case are part of a religious organization.”

Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.

“That’s extraordinary. That is extraordinary,” Justice Antonin Scalia declared. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

We don’t think that the job duties of a particular religious employee are relevant to the inquiry,” she said.

Even former Obama Solicitor General Elena Kagan was “amazed” by the Administration’s position. Obviously, however, the justices could potentially rule in favor of the EEOC on narrower grounds, though I am cautiously optimistic that they won’t.

Since this issue is at the outer edge of my range of expertise, I think I will leave the real heavy lifting on this case to the law and religion experts, lest I violate my own rules about choosing blogging topics. But I did want to highlight this part of the oral argument for interested readers.

FULL DISCLOSURE: I participated in a moot session for University of Virginia Law professor Doug Laycock, who represented the Lutheran Church in this case. I thought he did a great job at both the moot and the actual oral argument itself.

Justices Stephen Breyer and Antonin Scalia testified before the Senate Judiciary Committee yesterday. Scalia made the interesting argument that the creation of numerous federal drug crimes has reduced the quality of the federal judiciary:

Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..

The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

I am no fan of either the War on Drugs or the federalization of criminal law. I’m even less of a fan of the combination of the two. And Scalia is certainly right to criticize Congress for federalizing too many petty drug crimes. Unfortunately, however, he himself has contributed to the problem (at least at the margin) by voting to uphold one of Congress’ most constitutionally dubious extensions of federal drug law in Gonzales v. Raich, which I discussed here.

This is my final post for the week, and I just wanted to say that it’s been great participating in the Volokh Conspiracy! I didn’t get to all the topics which are covered in my book, so I hope my posts have made you curious about 100 Plus. One topic that may be of interest is how religion evolves in a longer-lived world. The answer will surprise you. So, now, on to the topic of the environment...

————–

Increased health and life spans may be a dream come true, but many worry that it could turn nightmarish owing to problems like overcrowding, resource depletion, and greater pollution. Living a long time might be wonderful on an individual basis, but if many people can do it, would the world still be a place in which we would want to reside?

This is a legitimate worry because both the U.S. and world populations continue to grow. For instance, in 1800 America’s population totaled just over 5 million—that’s fewer people than currently live in New York City. By 2011 that number had grown to over 311 million.

Likewise, the world population in 1800 was estimated at around 900 million and by early 2011 the U.S. Census World POPClock estimated that number at 6.8 billion. Of course, during that time the economy changed and living conditions improved significantly, driving up life expectancy by decades. Nevertheless, 6.8 billion is a big number. Can the planet and our societal structures handle any more people?

In his Essay on the Principle of Population (1798), Thomas Malthus advanced the thesis that population grows faster than our ability to provide for ourselves and thus will always be checked by famine, disease, and war. Malthus was wrong.

Consider the idea that more people automatically means less food for everyone. In reality, as population grew, so did our ability to produce food. Today, many around the world are struggling with obesity, or the consumption of too much food, all while the world’s population has been growing. Since 1800, the price of wheat has been steadily declining and the daily intake of calories per capita in both the developed and developing countries has been on the rise.

Though it may seem counterintuitive, greater numbers of humans do not necessarily translate to fewer available resources. A key reason for this is that the more people there are, the more ideas there are, and more ideas lead to new and better ways of producing the things that we need.

Fiber optic cables, which turned out to be superior to copper as a conduit for data communications, were invented in response to prohibitively high copper prices. Analogous innovations have been engineered in the food industry, such as high-yield dwarf wheat that has saved countless lives in India and Pakistan, and crops that can flourish in areas with less pure or plentiful water.

As the innovations driving the longevity revolution improve the length and quality of our lives, concurrent improvements in the environment can be expected. Numerous studies have shown that the less people have to focus their energy on survival and meeting their basic needs, the more they care about making their environment cleaner. This pattern has occurred, and continues to occur, in developed countries like the United States and is now beginning in developing countries.

There are new technologies on the horizon that promise to make the planet a cleaner and healthier place. For instance, it looks increasingly likely that societies will be able to turn more of their waste into fertilizer or energy. Such processes, if they were to become common, would revolutionize the way we think about garbage, perhaps even creating new and vibrant competition to collect trash.

One method involves a field known as synthetic biology, in which engineering principles are applied to biological systems. Using DNA sequencing and synthesis, scientists can re-engineer organisms like bacteria, yeast, and algae, thereby creating mini chemical factories that can turn all sorts of waste, including paper waste and carbon dioxide, into fuel.

With the recent passing of the remarkable Steve Jobs, it’s a good time to post his inspiring 2005 commencement speech at Stanford University. It’s only 15 minutes long. For my money, it’s hard to beat.

The Hill reports:

In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the “nuclear option” to change the Senate rules. . . .

Reid appealed a ruling from the chair that Senate Republican Leader Mitch McConnell (Ky.) does not need unanimous consent to force a vote on a motion to suspend the rules to consider amendments after cloture has already been approved.

The chair, which was occupied by Sen. Mark Begich (D-Alaska), ruled under the advice of the Senate parliamentarian that Republicans had the right to force a vote on a motion to suspend the rules and proceed to President Obama’s controversial jobs bill.

Republicans planned to use this right of the minority to embarrass Obama by showing that many Democrats do not support his jobs package as originally drafted. But Reid moved to kill their plan by appealing the chair’s ruling, triggering a vote.

The Senate voted almost completely along party lines to overturn the chair’s ruling, 51–48.

More from Roll Call and the Washington Examiner.

Rick Hasen comments:

This could have all kinds of implications for judicial nominations and the workings of the Senate across a range of issues if it is not quickly diffused.

Either this gets dialed back quickly or it escalates, and it does so at a particularly precarious time for Democrats, when Republicans have a realistic chance to control all the branches of the federal government next year.

UPDATE: Additional coverage from HuffPo and Politico.

FURTHER UPDATE: Some cautionary notes from Sarah Binder. More from TPM.