The Volokh Conspiracy

In addition to being the last day of the year, today is also the twentieth anniversary of the official end of the Soviet Union, when the last Soviet government institutions shut down. Today’s quasi-authoritarian Russia is far from admirable. But, despite Mikhail Gorbachev’s lame and self-serving claims to the contrary, it is still a vast improvement over the USSR. In addition to the benefits for Russia and other parts of the former Soviet Union, the fall of the USSR also created important benefits for the rest of the world. I covered the many advantages of the end of the USSR in more detail in this post.

With the demise of the USSR, we were spared a regime that slaughtered millions both within and outside its borders, inflicted numerous other human rights violations, and created a threat of nuclear annihilation that hung over the entire world. Compared to that, the very real dangers of the post-Cold War world seem minor by comparison. I recognize, of course, that the USSR in the last years of Gorbachev’s reign was much less dangerous and oppressive than it had been previously. But had the regime survived, it is far from clear that Gorby’s reforms would not have been reversed. Previous episodes of Soviet liberalization in the 1920s and 1956–64 had been followed by waves of repression at home and expansionism abroad. Moreover, Gorbachev himself was not as much of a liberal democrat as he is often portrayed in the West. He used force to try to suppress the independence movement in the Baltics, and otherwise sought to preserve the Soviet regime, not end it. He was certainly much less ruthless and repressive than his predecessors. But that is judging him by a very low standard of comparison. Nonetheless, it is fortunate that Gorbachev’s efforts at limited liberalization spun out of his control and led to a beneficial outcome that he did not intend.

In today’s Western Tradition Partnership, Inc. v. Attorney General, the Montana Supreme Court upheld a ban on corporate expenditures to speak in support of or opposition to political candidates — pretty much the same sort of ban that the United States Supreme Court struck down in Citizens United v. FEC. The majority argues that Citizens United is distinguishable, because of Montana’s “unique” interests stemming from its history, its size, and its political culture. Here’s what strikes me as a key excerpt, though both the majority and the dissent are long, and no short excerpt can do justice to them:

The question then, [given the long Montana history of corporate influence over politics that the court set forth –EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.

While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that individual voter contributions are diminished from 48% of the total raised by candidates in states where a corporate spending ban has been in place to 23% of the total raised by candidates in states that permit unlimited corporate spending. The point is illustrative of Montana, a state where citizens generally support candidates with modest campaign donations. In the case of ballot issues, where corporations may make unlimited donations, the characteristics of donors are markedly different from those who give to candidates. In 2004, for example, 97 institutional donors gave 95% of the total money raised in ballot initiative campaigns, while 760 individual donors accounted for the remaining 5%. Similarly, in 2008, 34 institutional donors gave 95% of the total money donated to ballot campaigns. Moreover, unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low-dollar, broadbased campaigns run by Montana candidates. At present, the individual contribution limit for Montana House, Senate and District Court races is $160, and for Supreme Court elections it is $310. With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process....

Finally, § 13–35-227(1), MCA, is narrowly tailored to meet its objectives.... Unlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech. As the Bender affidavit submitted by the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law the PAC has to comply with Montana’s disclosure and reporting laws. And as noted earlier, corporations are allowed to contribute to ballot issues in Montana, which is a significant distinction because ballot issues often have a direct impact on corporate business activities within Montana but present less danger of corruptive influences that have concerned Montana voters since 1912. The statute only addresses contributions regarding candidates for state political office.

(There is also a good deal of discussion about the lack of burden on these particular plaintiffs, but I focus here on the court’s broader rationale, which applies to all corporations that want to speak about candidates.) But the dissent disagrees; here is an excerpt:

Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.... I cannot agree that [the majority’s] “Montana is unique” rationale is consistent with Citizens United....

[W]hat has happened here is essentially this: The Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute....

My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

Hindustan Times (Dec. 24, 2011) reports:

A Delhi Court on Saturday ordered 22 social networking sites, including Facebook, Google, Yahoo and Microsoft, to remove all “anti-religious” or “anti-social” contents in the next one-and-a-half-month[s] ....

Kumar had on December 20 issued summonses to the social networking sites and asked them to remove objectionable photographs, videos or texts that might hurt religious sentiments....

The websites — asked to remove objectionable contents — include Facebook India, Facebook, Google India Pvt Ltd, Google Orkut, Youtube, Blogspot, Microsoft India Pvt Ltd, Microsoft, Zombie Time, Exboii, Boardreader, IMC India, My Lot, Shyni Blog and Topix....

The Times of India reports that the material included “derogatory articles on Prophet Mohammad, Jesus Christ and Hindu gods and goddesses.” “‘The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian,’ the magistrate said.”

The article does not indicate whether this is somehow targeted to Indian-hosted material, or to material being asked using identifiably Indian IP addresses, or whether this would in effect require the companies to delete all material put up by anyone, given that it can potentially be accessed in India. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

So reports OnIslam.net:

Bowing to protests pressures, the Maldives has ordered hundreds of luxury hotels to close their spas, a decision expected to affect tourism industry which forms a vital foreign exchange source for the Indian Ocean country.

“An Islamic party has been agitating against spas hoping to embarrass the government,” a senior government figure told Agence France Presse (AFP) by telephone asking not to be named.

The official confirmed Thursday’s ministry order following the protests that erupted in the country last Friday.

Answering a protest call by the opposition Adhaalat, or Justice, Party and several other groups, more than 3,000 people accused President Mohammed Nasheed’s government of compromising principles of Islam and call for Islamic law.

The government bowed to the pressure less than a week after President Nasheed called for a “tolerant” form of Islam in his nation.

The Maldives is a cluster of 1,200 islands renowned for its luxury resorts.

The tourism industry is a vital foreign exchange earner and employer in the Maldives, a popular high-end destination for honeymooners and celebrities where luxury rooms can cost up to $12,000 a day.

The Indian Ocean country [population 400,000] this year received more than 850,000 tourists, drawn to its secluded islands known for turquoise blue lagoons, as well as corals and reefs filled with multi-colored fish....

Considering the huge revenue earned from the business, tourism industry sources said they expected the government to revoke the decision on spas soon....

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Thanks to commenter CockleCove, I saw an article from Minivan News, a Maldivean publication, that gives some of the explanation for the closing (CockleCove reports, by the way, that “Minivan” means “Independent,” and has nothing to do with minivan):

After thousands of protesters gathered last Friday and demanded the government “close the spas and massage parlors and such places where prostitution is conducted”, the Tourism Ministry has today published a circular asking all the resorts to shut down their spas and massage parlors....

Speaking at a press conference held yesterday, [President Mohamed] Zuhair said the protesters did not specify where exactly the prostitution was conducted but mentioned that prostitution was conducted inside spas and massage parlors.

He said the government does not know how to differentiate between the spas and massage parlors that are complicit with prostitution and those which are not.

Therefore, Zuhair said the government has decided to shut down all such locales because Maldivians, including high-profile individuals, have been visiting tourist resorts and having spa treatments.

He said the government does not want those high-profile individuals’ good names being damaged by visiting places accused of such crimes.

Zuhair added that some of the individuals making these demands last Friday also conduct business in the tourism industry. Therefore, the government believes that, given their insider understanding of the resort and spa industry, their accusations are well-founded and there is not much to investigate.

This week, five spas run in five resorts owned by opposition Jumhoory Party (JP) Leader ‘Burma’ Gasim Ibrahim were asked by the Tourism Ministry to shut down operations over similar allegations.

The company subsequently sued the government....

My wife and I are organizing a local spelling bee, and watching our children learn spelling; the process made me think of how children can practice their spelling quickly online.

It seems to me that it would be helpful to have a Web page or a program that would

1. accept a list of words from a parent or teacher, and then, for each word,
2. look up the audio in some master repository (e.g., at dictionary.com or some such),
3. play the audio for the student who is using the program,
4. ask the student to spell the word (possibly giving a sample of how the word is used, if the parent or teacher wants to provide that),
5. check the student’s spelling against the correct spelling, and
6. provide the definition, likely borrowed from the same master repository.

I know there are programs that let parents and teachers create such tests by entering the words and speaking them into the computer, but my sense is that this makes the process considerably more cumbersome, and thus much less likely to get done. I also know there are some sites that provide such quizzes for their own sets of words, but the ones that I’ve seen have only relatively few words included.

Do any of you know of any program, whether free or for pay, that fits this description? If not, then it seems to me that it would be worth writing, and wouldn’t be hard for someone to write. (There might be a need to get clearance from the owners of the audio reference database, but I suspect that this shouldn’t be hard to arrange.)

A Foundation for Individual Rights in Education video, about the now-notorious University of Wisconsin-Stout Firefly poster incident:

Here’s a brief summary of the incident from FIRE:

On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that “it is unacceptable to have postings such as this that refer to killing.”

Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, “Respect liberty and respect my first amendment rights.” Walter responded that “the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.” Walter also threatened Miller with criminal charges: “If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.”

Later on September 16, Miller placed a new poster on his office door in response to Walter’s censorship. The poster read “Warning: Fascism” and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it “depicts violence and mentions violence and death.” She added that UWS’s “threat assessment team,” in consultation with the university general counsel’s office, had decided to have the poster removed, and that this poster was reasonably expected to “cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about “the concerns raised by the campus threat assessment team” for this Friday.

Some defenders of the Obama health insurance mandate try to scare off opponents by claiming that if the mandate were repealed, the result will be a system of socialized medicine. Presumably, conservatives and libertarians oppose the latter even more than former. Such claims may have led conservative commentator Paul Rahe to argue recently that the individual mandate is even worse than socialized medicine, or at least worse than government-provided health insurance. I think Rahe is wrong. But the more important point is that this is actually a false dichotomy: there are many alternative health care reforms that are more market-friendly than either the mandate or socialized medicine, whether the latter takes the form of government-provided health care (as in Britain) or “single payer” health insurance (as in Canada).

Even before Obama, health care was the most heavily regulated and subsidized industry in the United States, and there is plenty of room for free market reforms that can drive down costs by increasing competition. Some of the possible options are described in an important book by Cato Institute health care scholars Michael Tanner and Michael Cannon. They include breaking the connection between health insurance and employment created by government favoritism for employer-linked plans, and allowing individuals to purchase insurance across state lines, which would make insurance more portable and increase competition between insurance providers. As University of Chicago economist John Cochrane points out, there are also free market reforms that could alleviate the problem of coverage for preexisting conditions — the issue that is often cited as a justification for the mandate. And that’s just a small sample of the many available options. Many additional proposals are covered at John Goodman’s blog, among other places (Goodman is one of the best-known free market-oriented health care economists).

Obviously, the range of policies that are politically feasible in the near future is a lot narrower than the range of theoretically possible options. Even so, at least some pro-market reforms are likely to be as much or more politically viable as socialized medicine. If liberals could not push the latter through when the left was riding high in 2009 and Democrats had overwhelming majorities in both houses of Congress, it is highly unlikely that they will enact it at any time in the foreseeable future.

To the extent that socialized medicine is politically feasible, it may well become more rather than less so as a result of the individual mandate. Under the mandate, government must define the level of coverage that everyone is required to buy, including defining which medical conditions and treatments are included. This opens the door for constant lobbying by health care providers and other interest groups to ensure that their particular treatments are covered by the mandate. As more and more is mandated, the price of insurance goes up, and so too will political pressure for increasing government subsidies and government-provided insurance. Insurance costs have in fact gone up as a result of the Massachusetts “Romneycare” mandate that is the model for the federal reform.

Predicting the political future is a difficult business, so it’s possible that my expectations are wrong. At this point, however, it seems at least as likely that the continuation of the mandate will make socialized medicine more probable than that the opposite will happen.

Finally, if getting rid of the individual mandate really will bring on the advent of socialized medicine, why don’t any liberal activists and health care experts support it? There are plenty of left-wingers who would prefer socialized medicine to the Obama plan. If they think that the repeal of the latter would lead to the former, then they should form a coalition with Obamacare opponents on the right and work to get it repealed. A small number of liberals are in fact willing to get rid of the mandate, most notably Howard Dean. But even Dean doesn’t claim that abolition of the mandate would lead to socialized medicine. He merely thinks that the mandate is a political liability for Democrats and that the Obama plan can work just as well without it. The extreme rarity of left-wing support for repeal of the mandate suggests that few liberals genuinely believe that getting rid of it is likely to lead to socialized medicine.

Obviously, none of this is directly relevant to the constitutional arguments against the mandate. It is logically possible that the mandate is both unconstitutional and the only politically feasible alternative to socialized medicine. But that scenario seems highly unlikely. The spectre of socialized medicine should not deter free market advocates from either pursuing the constitutional case against the mandate or trying to repeal it politically.

I blogged about the case a year ago, and now there’s an appellate court decision in it, People v. Walker (Mich. Ct. App. Dec. 27, 2011). An excerpt:

[T]he charge against defendant arises from his alleged unauthorized access to the password-protected email account of his estranged wife, Clara Elizabeth Walker, from July 2009 through August 2009. At the preliminary exam, Clara testified that she filed for divorce from defendant on June 5, 2009, and that defendant had been served with the divorce papers by July 2009. Clara and defendant continued to live in the same home through August 2009. During this time period, Clara had a personal email account through Gmail and another email account through Yahoo. Clara never shared her passwords for these email accounts with defendant, nor did she ever give defendant permission to access those accounts....

Clara testified that she used a computer that defendant bought her for her use. Defendant set up the computer for her, but Clara set up the Gmail and Yahoo accounts herself. Although Clara had previously written passwords in an address book, she has not used the address book for passwords in many years and never provided defendant with those passwords. Clara testified that she had never written a pass code for defendant on a sticky note, and that she allowed defendant to use her computer only when it needed a repair. Defendant had two computers of his own at home, and Clara did not know the passwords for defendant’s computers....

[D]efendant argues that the circuit court erred in denying his motion to quash the charge alleging unauthorized access of a computer, MCL 752.795....

[T]here was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account....

[Moreover,] the prosecutor presented evidence that defendant acquired, altered, damaged, deleted, or destroyed property or otherwise used the service of a computer program, computer, computer system, or computer network. Defendant used the services of Gmail when he gained access to his estranged wife’s account, viewed her emails, and printed them to distribute to a third party. Further, by viewing, printing, and distributing the emails, defendant acquired his wife’s property, i.e., her password-protected emails containing restricted personal information or other tangible or intangible items of value....

Contrary to defendant’s argument, nothing in the statutory text suggests that spouses, estranged spouses, or parties to a divorce proceeding are immune from prosecution under the act.

The case can therefore proceed to trial. Thanks to Michael Smith for the pointer.

Andrew Trask (Class Action Countermeasures) lists what he sees as the ten most interesting 2011 articles on class actions, plus ten articles that he thinks ought to be written but haven’t been. If you’re looking for a student Note topic, check those out. Thanks to Brian Lehman for the pointer.

The broader context, from the dissent in In re Michels (N.Y. Comm. on Jud. Conduct Nov. 17, 2011):

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

The decision involves an interesting and difficult question of the permissible scope of restrictions on misleading candidate speech in judicial campaigns; those interested in the subject should check it out.

Kevin Walsh flags a very unusual Fourth Amendment case out of the Fourth Circuit that reaches a rather surprising holding: The police violate the Fourth Amendment, justifying suppression of the evidence, when the police use a knife to remove drugs tied around a suspect’s private parts during a search incident to arrest. The case is United States v. Edwards.

First, the facts. For fans of The Wire – cue the music – the case occurred in Baltimore in the Northern District. The police obtained a search warrant for a known drug dealer, Joseph Edwards, who was quite familiar to the officers. Edwards had earlier illegally brandished a weapon in front of two women. The police knew the neighborhoods where Edwards hung out, so they went there at night and saw him and placed him under arrest based on the authority of the warrant. Before putting Edwards in the police van to be transported to the station, the officers decided to check his crotch for guns or drugs. One of the officers testified that this was a common practice: ” You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

Four male officers surrounded Edwards. One officer loosened Edwards’s belt and stretched his pants and underwear out about six inches away from his body, and the officers directed a flashlight to see if anything unusual was there. As it turned out, there was indeed something unusual: Edwards had a clear plastic sandwich bag containing 43 smaller baggies of crack all wrapped around his penis. One of the officers put on gloves, took a knife he had with him, and cut the sandwich bag off. Edwards was unharmed, and the discovery of the crack led to crack possession charges.

In today’s opinion, a divided Fourth Circuit rules that the crack must be suppressed. Using the knife to remove the baggie was constitutionally unreasonable because Edwards could have gotten hurt, the court rules, even thought he wasn’t:

We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety. The district court found that the entire search took place at “approximately 11:30 [at night], in a dark area.” While the officers used a flashlight when searching inside Edwards’ underwear, they did not continue to use the flash– light when Bailey removed the baggie containing the susected drugs with his knife.

The government contends that because Bailey knew that Edwards was being arrested for a handgun violation, the search inside Edwards’ underwear was reasonable to ensure that the police had not missed finding a weapon during the earlier pat-down search. . . . .[A]ssuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

We do not suggest that after discovering contraband concealed under a suspect’s clothing, officers are required to permit the suspect to remove the contraband. . . . [I]n the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

I’m not persuaded. The officers had arrested Edwards pursuant to a valid warrant, and they were conducting a search incident to arrest. Under United States v. Robinson, that allows a full search of the person, which I would think would include checking out whether a suspect has hidden drugs or a gun on their body. The court uses the Bell v. Wolfish framework to determine whether the search of Edwards was reasonable, but that seems like the wrong doctrinal box: While Bell is the framework for searches for drugs and guns on the person once arrestees arrive at the jail, here the controversial step was using the knife to remove the drugs. Using the knife wasn’t a search at all: It was a means used to seize drugs that had been found in plain view during a search incident to arrest. It could be litigated as an excessive force civil claim, but I don’t think it implicates the constitutionality of the search that preceded it or triggers Bell.

Even if you accept that Bell’s framework applies, I’m not aware of a precedent that supports such micromanaging of the details of a search. The court’s opinion announces that the police can use “blunt scissors” to remove a baggie of crack from around an arrestee’s penis, but the United States Constitution prohibits using a “knife” to do it — apparently because the latter poses unnecessary risks while the former does not. While most of us can recognize and appreciate the Court’s concerns, I don’t think that a suspect’s decision to tie a bag of crack around his johnson triggers such heightened scrutiny of the means of removal when the cops arrest him on a warrant and search him incident to arrest. That’s all the more true because Edwards wasn’t actually injured when the officers removed the bag.

The California Supreme Court recently issued a ruling upholding the constitutionality of a law abolishing the state’s numerous redevelopment agencies:

The California Supreme Court ruled Thursday against redevelopment agencies, including San Diego’s, and said they cannot remain in business by paying the state a portion of their property tax receipts....

The court was dealing with two laws passed by the Legislature in June to help close the state budget deficit by tapping the redevelopment funds held by redevelopment agencies.

One, AB1X26, abolished the redevelopment agencies and set up a mechanism to shift the redevelopment taxes back to the cities, counties, schools and others.

The second, AB1x27, allowed the agencies to continue but required them to opt in but only by paying pay the state $1.7 billion from their tax revenues this year and about $400 million annually in the future or about 10 percent of their tax receipts....

The second law is unconstitutional, the court said, because the agencies do have a right under Proposition 22, passed last year, to retain local revenues.

“We largely uphold Assembly Bill 1X26 and invalidate Assembly BillX127,” the court said.

And so in an ironic twist of fate, the agencies won their argument that they can keep their money but lost their argument that they can continue to exist.

Although the bill abolishing the redevelopment agencies was adopted primarily for the purpose of alleviating the state’s dire fiscal problems, it also has the beneficial side effect of curtailing eminent domain abuse. As I explained in this post defending the new legislation before it passed, the redevelopment agencies routinely engaged in dubious takings that transferred property to favored interest groups and destroyed more value than they created.

The Institute for Justice — a leading libertarian public interest law firm specializing in eminent domain issues — addressed the property rights benefits of the ruling in this statement:

In a landmark victory for private property owners in the Golden State, the California Supreme Court today upheld a statute abolishing the nearly 400 redevelopment agencies across the state. The court also struck down a law that would have allowed these agencies to buy their way back into existence. The final outcome of the case is that, in 2012, California’s decades-long redevelopment nightmare will finally come to an end.

California redevelopment agencies have been some of the worst abusers of eminent domain for decades, violating the private property rights of tens of thousands of home, business, church and farm owners. The Institute for Justice has catalogued more than 200 abuses of eminent domain across California during the past ten years alone....

While the decision focused on specific provisions of the California Constitution, its practical effect represents a significant victory for California property owners. “Redevelopment in California has been a billion-dollar, state-subsidized boondoggle that has completely eroded private property rights through the abuse of eminent domain for private gain,” said Christina Walsh, the Institute’s director of activism and coalitions. “With the court’s decision, redevelopment has finally met its long-overdue end, and property owners who have been living in terror across the state can finally rest safe in what they’ve worked so hard to own.”

The ruling won’t necessarily end all eminent domain abuse in California. Other government bodies also sometimes engage in abusive takings, and it’s possible that the state legislature will give more condemnation authority to some of those agencies now that the redevelopment agencies are gone. Nevertheless, the abolition of those agencies is a major step forward for property rights in California, as well as for the state’s beleaguered taxpayers.

Proposed by a liberal Democratic governor and supported by a wide range of libertarian and conservative property rights advocates, the law upheld in this case is a good example of the kind of cross-ideological cooperation on property rights issues that we need to see more of.

I recently finished reading Pauline Maier’s marvelous book, Ratification: The People Debate the Constitution, 1787–1788. Maier, a historian at MIT, has written the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments. It was made possible by the still incomplete Documentary History of the Ratification of the Constitution that now runs to 24 volumes, on which Maier based much of her research.  The records of the ratification debates are notoriously incomplete but Maier is able to fill in many of the gaps with other sources.

Having read much of the surviving records of the ratification convention debates, I probably know more about these conventions than most people. Yet there was far more in Maeir’s book that I did not know than I did.  Studying the conventions in chronological order makes far clearer the evolution of the arguments against and for the Constitution as well as the shifting tactics of both sides. You also learn about the differing political and economic situations of each state, as well as the biographical backgrounds of the major players, and many of the minor players as well. It is a riveting story, engagingly told. And the new paperback is just $12.91 on Amazon.com!

The story is also told in an extraordinarily fair and balanced way. Having previously read Maier’s views on the Second Amendment expressed in a New York Times op-ed, I was on my guard for the sorts of biases one typically finds in historical treatments of subjects with potential contemporary relevance. In addition to leaning one way or the other on the meaning of the text, there are always those scholars who perennially love or hate Hamiltonian, Jeffersonian, or Madison, etc. or those who root for or against the Federalists or the Antifederalists.   So far as I could tell, Maier’s treatment is as “neutral” or “objective” as is possible for a scholar to be, unfashionable as those terms may be among academics.   It just seems like she is telling the story as it unfolded, letting each character speak for him or herself, while dispassionately presenting the various strengths and weaknesses of each. I got little or no sense of whose side she may or may not be on, or who she liked or disliked.

In any historical work of this breadth, you are forced to judge the accuracy of the information with which you were previously unaware with the accuracy of the information you already knew. Through all this 480 page  book, I found nothing at odds with what I thought I knew, giving me confidence in the rest.  One reason for this, perhaps, is that Maier offers little information that is comprehensive enough to draw conclusions on original meaning — and she only rarely even suggests any interpretive claims. So in contrast to her op-ed on the Second Amendment, there is little or nothing with which to disagree on originalist grounds.

Which is not to say there is nothing of substance to learn from this story.  Perhaps the most pervasive theme of the book is how widespread the pressure for amendments was by opponents, and even most supporters conceded that some amendments were necessary.   Although I already knew this in general terms, it was most powerful to read accounts of the role that amendments played at each convention after the earliest ones.  Reading this account makes it very clear why it was that the Constitution was so quickly amended — although (as I have written) Madison had to overcome much resistance among a Federalist dominate Congress to get it to take up the matter — and why the amendments proposed by Congress were so disappointing to so many of the Antifederalists. Indeed, the debate over possible amendments and whether their adoption should precede the adoption of the Constitution or come afterwards is probably the dominant theme of the book.

Given my views on originalism, some may wonder what implications Maier’s book has for original meaning interpretation.  I can think of one: this work undercuts claims by some originalists that, where the general public meaning of the text is vague, the ratification debates clarify that meaning by rendering it more specific. For example, some cite the Virginia ratification debates in which the Federalist defenders of the Constitution denied that states could be sued by citizens of another state in federal court as Article III appears clearly to authorize. The claim is that vague original meaning was “fixed” by the views that supporters of the Constitution offered to clarify meaning.  For example,the claim is made that that debates in Virginia support the conclusion that Chisholm v. Georgia, which rejected Georgia’s claim of sovereign immunity from citizen suits, was wrongly decided and that the Eleventh Amendment reversing that holding restored the original meaning. The alternative view is that the Constitution’s text did authorize such suits (though this may or may not have been an oversight), and once the Supreme Court correctly so held, Congress and the states revised the Constitution’s text to eliminate this federal jurisdiction over states.  (I have written about Chisholm here.)

Maier’s narrative makes it abundantly clear that few outside the walls of any convention would have been aware of any statements by the Constitution’s supporters, and convention delegates in one state knew very little about what transpired in the others. Although convention statements both for and against the Constitution are evidence of original public meaning, public statements by Federalist supporters cannot provide a definitive gloss on that meaning.  To the contrary, the very fact that the Antifederalists read the provisions in Article III this way, which then required an extra-textual admission of sovereign immunity by the Constitution’s supporters, is some evidence that the Supreme Court in Chisholm was right about the public meaning of the text.  (Of course, one can see why a historian like Maeir who, in her NYT op-ed, makes claims about “original intent” might think otherwise, but she makes no such “originalist” claims in this book.)

No one should read Pauline Maier’s wonderful book looking for insights about interpretive methodology or the original meaning of various clauses. One should read this book if you are at all interested in how the Constitution came to be, and what American political discourse was like during this crucially important and formative period of American history. And one should also read this book if one simply wants an engaging and entertaining story that you may have thought you already knew, but didn’t really.

UPDATE:  The Amazon sales ranking for Maeir’s book from Amazon moved up from over 19,000 yesterday when I posted to 2,391 today (though a link this morning from Glenn Reynolds no doubt helped a little).

Over at Ricochet, via Instapundit, Paul Rahe argues that conservatives should prefer a government-run health care system paid for by higher taxes over an individual-mandate approach:

Government exists first and foremost for the sake of our protection. Without it, our lives and our property would not effectively be our own. Government exists also to promote our well-being. For its support, however, taxation is necessary, and we have tacitly agreed that, to be legitimate, these taxes must be passed by our elected representatives. By our own consent, we give up a certain proportion of our earnings for these purposes.

The money left in our possession, however, is our own — to do with as we please. It is in this that our liberty largely lies. Romneycare and Obamacare, with the individual mandate, changes radically our relationship vis-a-vis the government. The former presupposes that state governments have the right to tell us how we are to spend our own money, and the latter presupposes that the federal government has that right as well. Both measures are tyrannical. They blur the distinction between public and private and extend the authority of the public over the disposition of that which is primordially private. Once this principle is accepted as legitimate, there is no limit to the authority of the government over us, and mandates of this sort will multiply — as do-gooders interested in improving our lives by directing them encroach further and further into the one sphere in which we have been left free hitherto.

I’m curious: Did any conservatives express this view before President Obama embraced the individual mandate? Or at these sorts of arguments something that conservatives didn’t assert until long after the legislation was passed?

UPDATE: On April 3, 2010, a week or so after the individual mandate was passed, Rahe appeared to strongly endorse the following statement of Mark Steyn that was part of a broad criticism of the new law:

Whatever is in the [health care] bill is an intermediate stage: . . . the governmentalization of health care will accelerate, private insurers will no longer be free to be “insurers” in any meaningful sense of that term (i.e., evaluators of risk), and once that’s clear we’ll be on the fast track to Obama’s desired destination of single payer as a fait accomplis.

That’s the kind of criticism I remember at the time: Obamacare was really bad on its own, the argument ran, and even worse it was likely to lead to a government-run system in the future. As I recall, the thinking was that Obama really wanted a government-run system but didn’t get enough support for it outside the left, so he had to compromise with moderates and that resulted in the mandate.

Here’s an interesting blog post by Dondero, that takes Paul to task over his “simply outrageously horrendous views on foreign policy, Israel, and national security for the United States.”

I thought the most interesting revelation was Paul’s argument that the U.S. shouldn’t have gotten involved in World War II because “saving the Jews” was none of our business. The issue of whether and to what extent the U.S. should use its military resources for humanitarian causes is certainly a legitimate one. But the idea that the U.S. got involved in World War II to “save the Jews” bespeaks such a gross misunderstanding of history that one is left to conclude that Paul is either an ignoramus who has formed very strong views on foreign policy with very little knowledge to back them up, or that he is unusually susceptible to conspiracy theories, especially ones that involve Jews. The evidence suggests that the answer is “both.”

UPDATE: A commenter points out, correctly, that it’s not clear from Dondero’s statement whether Paul actually believed that the the U.S. got involved in WWII to “save the Jews,” or whether, instead, Paul expressed opposition to U.S. involvement in WWII, and then when challenged rejected the notion that such involvement was justified to save the Jews. Such involvement certainly wouldn’t have been justified on the latter basis, given that saving the Jews was, to say the least, not exactly a priority of the Allies’ leadership during the War, regardless of whether it was in fact “our business” or not.

So, I think I was too hasty to criticize Paul on the basis of Dondero’s statement. But Dondero’s statement is still very interesting.

To all of the readers and Co-Conspirators of the Volokh Conspiracy.  The Anderson family had a lovely Christmas, with our daughter home from her first semester at Rice University, which she loves despite spending the semester with mono and strep and returning home early for an urgent tonsillectomy.  Santa delivered Ipads to Beloved Wife and me, which I am finding harder to set up than I would have expected, mostly due to having to change a whole raft of Apple, Itunes, and MobileMe passwords and settings, and upgrade to the Lion operating system.  Not quite as seamless as I had hoped, but I’m powerfully eager not to haul my laptop around as much.

I gave everyone in the family Volokh Conspiracy tote bags.  Enough said, and that’s not all I gave Beloved Family.  (Inside Beloved Wife’s bag were a couple of Agnes B shirts I tracked down cheap on Ebay; I don’t know much about clothing, men’s or women’s, but I knew from long experience these would be good choices.)

Beloved Daughter gave me two books.  The first is Football for Dummies because, well, that’s my level of knowledge.  But I’m expected to cheer for my alma mater, UCLA, and now for Rice, although I’m told I should not expect many victories.  The second is one of the coolest books I’ve received in a long time, which Beloved Daughter found at a Rice library used book sale.  How Things Work is a 1961 book by a mechanical engineer and editor with a trade magazine in the late 1950s (I’ve got the title slightly wrong — I’ll find it and the author and amend this).  It explains in simple language and great drawings how the mechanical and electrical devices of ordinary life work.  Refrigerators and sewing machines, air conditioning and electric motors, fuses and light bulbs, zippers and car engines.  The reason it is so great is that these are still (as Tyler Cowen and others have pointed out) the machines of daily life, minus the semi-conductor revolution.

One of the strange things is that a lot of popular mechanics and pop sci stuff somehow skipped a generation with me — I learned a lot more about abstract theories and things like relativity and genetics as taught in the 1960s than mechanical things.  Somehow those were taken as obvious — but let me be the first to admit I could not truly explain how a zipper works.  And though I knew about atomic theory, I was hazy on the practicalities like AC and DC.  Or for that matter, why a toilet has the shape it has.  The emerging technologies were computers and such; mechanical objects were assumed.  So this book is a pleasure to read and I’m filling in some crucial gaps about ordinary things.  I’d always been an “assume the can opener” kind of guy — without much clue exactly how a can opener works.  Interestingly, these basic principles of machines and power transfer are at the heart of another book that Santa brought — Mark Ripptoe’s Starting Strength: Basic Barbell Training, which has many drawings showing how levers and fulcrums drive a lot of strength training such as the dead lift.

Our family also watched the entire Lord of the Rings this week.  Apparently this is not that uncommon; I saw that Michael Totten said the same on his FB page and promptly got a bunch of responses saying, yeah, we do that too.  I suppose it’s because the three parts each came out at Christmas.  And when else will you have the time?  But — I defer to Ilya on this — it seems to me there is a spiritual message there that is not precisely religious but part of that which religion and spirituality have always stood to combat — the temptation to despair.  That seems to me the biggest reason why we found the movie appropriate for Christmas.  Resisting despair at the individual level, and using bonds of affection — trust, loyalty, fidelity — to combine together for the greater good and to resist the greater evil.

(I’ve left comments open.)

So it turns out that simply eliminating the supply of payday lending doesn’t actually eliminate demand.  Who would’ve thought it?  According to this story (which simply reports what has already been known to be the case), whenever state laws eliminate bricks-and-mortar payday lending many of those consumers simply substitute to online payday lending.  Indian Tribes are becoming an especially attractive base for online payday lending operations.

In general, of course, more competition is better than less, and so I fully support the right of online payday lenders to compete with traditional bricks-and-mortar operations.  On the other hand, as noted in the article, online payday lending raises several novel regulatory concerns.  For example, as I understand it, rather than writing a post-dated check, online payday lending often works through a borrower giving the lender direct access to his bank account to make an EFT, which can raise heightened concerns about privacy and security.  Moreover, despite their lower operating costs, to date online payday lenders do not appear to offer rates noticeably lower than bricks-and-mortar businesses.  This could be for several reasons: adverse selection, heightened default risk (because of lack of legal enforceability), or reduced competition because of the fact that many online borrowers lack easily-accessible offline options.  In the medium to long run, however, I suspect that online payday lending is a useful pro-consumer innovation and would grow over time, even without the subsidy provided by legislators regulating out of existence their leading source of competition.

More generally, the point here is obvious: while competition and free choice is good, enacting well-intentioned but misguided regulations that eliminate consumers’ preferred options and push them to less-preferred options is not a strategy well-designed to increase their welfare.  You simply cannot wish away consumer need for credit, even short-term high-cost credit.  And while state regulations enacted on the misguided premise that we can wish away that need has proved a boon for Indian Tribes and online lenders I fail to see how payday loan customers are better off as a result of this substitution.

Update:

I received a few useful comments from a lawyer who expert in all types of payday lending.  He offers a few corrections and elaborations to some of my observations:

1.  Regarding “heightened concerns about privacy for ACH debits, the information necessary to initiate an ACH debit entry to a person’s checking account is the same information that is encoded on the bottom of his check–the routing number and account number, nothing more, and has no more “private” information than the possessor of an unsigned black check from the borrower’s account.  The ACH process is also extensively used by brick-and-mortar payday lenders to collect past-due loans for reasons for speed and simplicity.  The cost of doing so is also lower than the cost of presenting the physical check; bank charges for a returned ACH debit are generally a small fraction of such charges for a returned check–this despite the current practice of banks under the Check 21 Act to present nearly all checks electronically.

2.  There is a huge, and rapidly-growing, Internet-based lending business, both for payday and auto title.  Indian tribal sovereign immunity is only one of the models.

3.  In general, the price of an Internet payday loan is, as you point out, higher than the price of a comparable brick-and-mortar loan.  There are several reasons for this.  First, with immaterial exceptions, every state that permits payday lending has a regulated price ceiling.  As a general matter, the regulated ceiling is below the equilibrium price.  The Internet is generally free of these strictures, price discovery is simple, and the equilibrium price unsurprisingly winds up as the market rate.  Second, the lender’s highest costs on the Internet are not credit losses but rather the costs of borrower acquisition that involve payments to third parties....  Lead generation is itself a huge and profitable industry.  Third, credit losses are indeed somewhat higher with Internet loans but insufficiently higher to explain the price differential.

This is all very helpful.  I find point 3 especially interesting in that it reminds me that payday loan storefronts are themselves a type of advertising, much like the ubiquity of Starbucks stores not only enables them to sell a lot of coffee but also serves as a type of advertising for the chain more generally.  At the same time, this advertising function is embedded in the overhead.  Online payday lending, of course, lacks that attribute so it follows that they would have to use alternative marketing devices.  I’m intrigued by the “lead” business for Internet payday loans if anyone knows more about that.

Also, it sounds like there is indeed some adverse selection with respect to Internet lenders as at least some of those who borrow have been rationed out of traditional bricks-and-mortar price controls.  Adverse selection might also contribute to the higher default rate online if collection is more difficult because of legal restrictions and difficult in enforcement.

A recent decision of the District of New Mexico, United States v. Rodriguez, 2011 WL 6739498 (D.N.M. Dec. 8, 2011) (Browning, J.) , addresses an issue of Fourth Amendment law that touches on Second Amendment concerns: In a concealed carry state, does police observation that a person is in possession of a concealed weapon create “reasonable suspicion” justifying a stop and frisk for a potential violation of the state’s concealed carry law? The court concludes that it does, although that conclusion strikes me as incorrect.

The facts of the case are complicated, but here are the basics. A local 911 dispatcher received a call from a woman who reported that she had just seen two employees of a convenience store show their handguns to each other while inside the store. The caller indicated that both of the employees were carrying the guns on their persons. Officer Munoz was dispatched to the convenience store, which was located in a high-crime neighborhood and which Munoz had visited in response to police calls many times before. Munoz entered the store and saw an employee restocking some products. When the employee bent over one of the shelves, the officer could see a handgun tucked in the waistband of the back of his pants. The officer asked the employee to step outside, and he grabbed the gun from the employee’s waistband for officer safety purposes. Once outside, the officer asked the employee if he had a permit to carry the gun. The employee, Rodriguez, said he did not. The gun turned out to be a loaded Smith and Wesson .357 magnum revolver. The officer arrested the employee for violating New Mexico law on carrying a concealed loaded firearm, which states in relevant part:

30–7-2. Unlawful carrying of a deadly weapon.

A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases: . . . by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [29–19-1 NMSA 1978].
B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.
C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.

It turned out that the employee had a felony record, and he was therefore charged in federal court with being a felon in possession. He has here challenged the “stop and frisk” which lead to the exchange in which Rodriguez acknowledged that he had no permit, thus leading to his arrest. Whether the “stop” was lawful depends on whether the officers had “reasonable suspicion,” based on specific and articulable facts, that the employee was engaged in illegal activity. Whether the frisk that retrieved the gun was lawful depends on whether the officers had specific and articulable facts that the suspect was armed and dangerous.

The District Court, per Judge James O. Browning, concludes that seeing the gun on Rodriguez created reasonable suspicion justifying the stop:

When the officers arrived at the convenience store, through their own observations, they saw the gun concealed under Rodriguez’ shirt and tucked into his waistband. While it is true, as Rodriguez has argued, that he may have been able to possess the handgun under N.M.S.A.1978, § 30–7–2(A)(1), the Tenth Circuit and the Supreme Court have recognized that, even when conduct may have been legal under state law, such possibility does not automatically preclude reasonable suspicion to conduct an investigatory stop. See United States v. King, 990 F.2d at 1556 (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.” (alteration in original)(quoting Reid v. Georgia, 448 U.S. at 442)). More specifically, the Tenth Circuit has recognized this principle in the context of New Mexico laws on carrying concealed weapons. See United States v. King, 990 F.2d at 1556.

The officers could have concluded, based on their observations, that Rodriguez would require a license to lawfully carry a concealed firearm. See N.M.S.A.1978, § 30–7–2(A)(5) (providing as an exception to the law that “carrying of a deadly weapon” is an offense when the person is “in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act”). Additionally, New Mexico law expressly permits officers to inquire of persons carrying a concealed handgun whether they have a license to do so. See N.M.Code R. § 10.8.2.16 (“A licensee carrying a concealed handgun on or about his person in public shall, upon demand by a peace officer, display his license to carry a concealed handgun.”). The officers observed Rodriguez’ concealed firearm before interacting with him or communicating with him. . . . Other facts that support the existence of reasonable suspicion are that Munoz was aware that the convenience store was in a high crime area in town, and he had been to this particular gas station in the past numerous times to investigate reports of criminal conduct. See United States v. Arvizu, 534 U.S. 266 (2002)(recognizing that officers are “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.”); Ornelas v. United States, 517 U.S. 690, 699 (1996)(“[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.”). Under these facts, the most important fact being the officers’ firsthand observation of the firearm, the officers had reasonable suspicion that Rodriguez was carrying a firearm in violation of New Mexico law.

These facts make this case similar to the Fourth Circuit’s United States v. Black decision. The Fourth Circuit in that case found that reasonable suspicion existed to detain a defendant for carrying a concealed firearm in violation of state law based on the following facts: (i) the officer knew that the area was a high crime area in which the officer had made numerous arrests; (ii) while the officers were talking to the defendant, he had his “right hand awkwardly inserted halfway in his right-hand pocket, ‘cupped’ as if ‘grasping an object’ “; (iii) the defendant hesitated to remove his hand from his pocket when requested to do so; (iv) after the defendant removed his hand, the officer observed a bulge in the defendant’s pocket; (v) the defendant lied about what was in his pocket, saying he had nothing in there other than his money and his identification; and (vi) after the defendant realized that the officers thought he was lying, he put his hand back in his pocket. See United States v. Black, 525 F.3d at 361–62. Notably, the officers in United States v. Black had reasonable suspicion even though they never observed the firearm before the investigatory detention began. In this case, the officers observed Rodriguez’ firearm tucked into his waistband. . . .

Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.

According to the Court, the same facts justified taking away the gun for officer safety purposes:

While the gun was tucked into his waistband, it was immediately within Rodriguez’ reach. Munoz testified that he removed the weapon because he was concerned for officer safety. Given that the officers actually observed the firearm and that it was immediately within Rodriguez’ reach, “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. As the Tenth Circuit has likewise explained: “The presence of one firearm ... certainly provides a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons.” United States v. Henning, 906 F.2d 1392 (citations omitted). Thus, under these circumstances, the officers properly obtained Rodriguez’ weapon from him to protect their safety.

The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it. And the fact that this occurred in a high-crime neighborhood doesn’t make a difference: The suspect was an employee of a convenience store who was working in the store at the time, so it’s not like the nature of the neighborhood suggests he was more likely to be involved in crime himself.

The Fourth Circuit’s decision in Black seems clearly inapposite. In Black, the suspect acted suspiciously, hesitated to comply with officer’s demands, and outright lied to the officers, creating the suspicion that he was hiding something in his pocket. It was the appearance of deceitfulness that created the reasonable suspicion. In this case, by contrast, the employee did not act deceitfully. The officers decided to initiate the stop before the employee was asked a question or even knew the officers were there.

The Court’s frisk analysis also seems suspect. A frisk requires specific and articulable facts that the suspect is armed and dangerous. Obviously Rodriguez was armed. But in a state that allows concealed carry with a permit, it’s not clear that mere possession suggests danger to the officer. It may be argued that taking away the gun wasn’t so much a frisk as it was a seizure of the gun, but then I don’t see the probable cause that the gun was evidence of a crime needed to satisfy the plain view exception.

I would think the best argument for reasonable suspicion would be based on the fact that the gun was just tucked in the waistband of the guy’s pants rather than safely holstered, but the court does not address this possibility; I’ll leave to others whether the argument has any merit. Finally, I should note that even if the court’s analysis is wrong, which I think it is, that doesn’t mean the motion to suppress should have been granted. The court did not reach the government’s argument that the “inevitable discovery” exception to the exclusionary rule applied, and it sounds like it would fit neatly here: If the officers had not conducted a Terry stop, they would have asked the same questions and presumably received the same answers. (Hat tip: FourthAmendment.com)

Ilya blogged about this lawsuit when it was filed, so I thought I’d note that today the Eighth Circuit allowed the lawsuit to go forward, “revers[ing] the district court’s grant of summary judgment based on qualified immunity.” Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. “Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment.”

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more.

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times’ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

On December 23, the President signed an omnibus spending bill and issued a signing statement detailing his objections to various provisions and limitations contained in the bill. Here is coverage from The Hill and the NYT. Several of the bill’s provisions “raise constitutional concerns.” Accordingly, the President announced these provisions would be interpreted in a manner that would minimize potential constitutional conflicts and applied ” in a manner consistent with my constitutional authority as Commander in Chief.” Furthermore, the President explained, he would “not treat these provisions as limiting my constitutional authorities in the area of foreign relations.”

An Englishman makes a confession: He prefers American football to soccer.

In its energy and complexity, football captures the spirit of America better than any other cultural creation on this continent, and I don’t mean because it features long breaks in which advertisers get to sell beer and treatments for erectile dysfunction. It sits at the intersection of pioneering aggression and impossibly complex strategic planning. It is a collision of Hobbes and Locke; violent, primal force tempered by the most complex set of rules, regulations, procedures and systems ever conceived in an athletic framework.

Soccer is called the beautiful game. But football is chess, played with real pieces that try to knock each other’s brains out. It doesn’t get any more beautiful than that.

The Politico website recently asked its contributors for commentary on the controversy over Ron Paul’s racist newsletters. Here is an excerpt from my response:

Ron Paul clearly deserves substantial blame for publishing racist and anti-Semitic material in his newsletters in the early 1990s. Although he almost certainly did not write those articles himself, it is difficult to believe that he was completely unaware of their contents. Moreover, there is no disputing the fact that, in the early 1990s, Paul was part of a small group of libertarians led by Lew Rockwell and Murray Rothbard who sought to forge an alliance with “paleoconservative” elements by adopting a political strategy of appealing to white racial resentment.....

Paul is not a racist himself. But at least for a time, he was clearly willing to get into bed with political allies who sought to exploit racist sentiments. In some ways, Paul’s situation is similar to that of other politicians with dubious past associations. Indeed, there are parallels between Paul today and Barack Obama in 2008, when he was attacked for his past relationships with anti-American and anti-Semitic minister Jeremiah Wright and ex-terrorist and self-described communist Bill Ayers....

Despite their respective efforts at damage control, it is entirely legitimate to hold these past associations against Obama and Paul. While they were not bigots or terrorists themselves, they clearly were willing to ally themselves with people who are.....
I am not a Paul supporter myself – both because of the newsletter issue, and because I think he is badly misguided on some other issues. But I can understand why a reasonable person might reach the conclusion that Paul’s strong libertarian stance on a number of issues today outweighs his earlier sins.

One of my concerns about Paul’s candidacy is that it could end up tarring libertarianism by association with his past misdeeds. It is important to recognize that the Rothbard-Rockwell strategy was opposed by most libertarian intellectuals and movement organizations when they and Paul pursued it in the early 1990s.....

[N]umerous libertarian commentators have denounced Paul’s equivocations about the newsletters during the 2008 campaign and this year. We have neither excused nor ignored his very real flaws. Rothbard and Rockwell’s “paleo” strategy was widely opposed in libertarian circles long before it became a major public controversy during Paul’s most recent presidential campaigns.

Paul’s relative success this year shows that the libertarian message has considerable appeal even when the messenger is deeply flawed. It remains to be seen how much the messenger’s sins will tarnish the libertarian cause in the long run.

For my earlier commentary on Paul, see here and here, and this series of posts written during the 2008 campaign.

I wanted to recognize a nice story published on Christmas Day in the New York Times about my friends at the Goldwater Institute where I (and Randy) are Senior Fellows.  In addition to Clint Bolick, who is featured in the article, I want to recognize the great work of Nick Dranias, with whom I’ve done most of my work with the Institute.

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

This may seem like the kind of minutiae that only a law nerd could love, but I think it rests on some very interesting puzzles of Fourth Amendment law. There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the sae time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home). In the case of sniffs around a car, reasonable people can disagree for a number of reasons on how dog sniffs should fit in this framework. But once the Court announces the rule for the common case of the sniff around a car, as it did in Caballes, some officer is going to try to use the rule to see if it applies elsewhere, as in a search around a home. Use of the technique at a home changes its practical significance, however, creating a possible conflict between the kinds of pragmatic assessments that may have guided the rule-choice in the car setting and the need to explain how a practice can be a search at the front door of a home but not around a car.

So you could end up with judges going all sorts of different ways: some would say neither should be a search, others would say both should be, and some would say the home sniff is and the car sniff isn’t. To top it off, many people have extremely strong beliefs about what the correct answer is, so much that they think any other answer must reveal some sort of bad faith or idiocy. Fun stuff for Fourth Amendment nerds, anyway.

Soeren Kern (Hudson New York) reports:

An Austrian appellate court has upheld the conviction of Elisabeth Sabaditsch-Wolff, a Viennese housewife and anti-Jihad activist, for “denigrating religious beliefs” after giving a series of seminars about the dangers of radical Islam.

The December 20 ruling shows that while Judaism and Christianity can be disparaged with impunity in postmodern multicultural Austria, speaking the truth about Islam is subject to swift and hefty legal penalties.

Although the case has major implications for freedom of speech in Austria, as well as in Europe as a whole, it has received virtually no press coverage in the American mainstream media.

Sabaditsch-Wolff’s Kafkaesque legal problems began in November 2009, when she presented a three-part seminar about Islam to the Freedom Education Institute, a political academy linked to the Austrian Freedom Party.

A glossy socialist weekly magazine, NEWS — all in capital letters — planted a journalist in the audience to secretly record the first two lectures. Lawyers for the leftwing publication then handed the transcripts over to the Viennese public prosecutor’s office as evidence of hate speech against Islam, according to Section 283 of the Austrian Criminal Code (Strafgesetzbuch, StGB). Formal charges against Sabaditsch-Wolff were filed in September 2010; and her bench trial, presided on by one multicultural judge and no jury, began November 23, 2010....

[At trial,] Sabaditsch-Wolff was convicted of ... “denigration of religious beliefs of a legally recognized religion,” according to Section 188 of the Austrian Criminal Code.

The judge ruled that Sabaditsch-Wolff committed a crime by stating in her seminars about Islam that the Islamic prophet Mohammed was a pedophile (Sabaditsch-Wolff’s actual words were “Mohammed had a thing for little girls.”)

The judge rationalized that Mohammed’s sexual contact with nine-year-old Aisha could not be considered pedophilia because Mohammed continued his marriage to Aisha until his death. According to this line of thinking, Mohammed had no exclusive desire for underage girls; he was also attracted to older females because Aisha was 18 years old when Mohammed died....

Sabaditsch-Wolff appealed the conviction to the Provincial Appellate Court (Oberlandesgericht Wien) in Vienna, but that appeal was rejected on December 20....

In January 2009, Susanne Winter, an Austrian politician and Member of Parliament, was convicted for the “crime” of saying that “in today’s system” the Mohammed would be considered a “child molester,” referring to his marriage to Aisha. Winter was also convicted of “incitement” for saying that Austria faces an “Islamic immigration tsunami.”

If anyone can point me to an English translation of the opinion, or an English-language news story on the subject that adds more details, or even to the German-language original of the appellate decision, I’d love to see it. The court says she will go to prison if the fine is not paid within the next six months. She says she will take the case to the Strasbourg-based European Court for Human Rights.

I should note that Austria has indeed tried to restrict blasphemy of Christianity at least as recently as 1985, and continued to defend such a restriction until 1993 — see this post, which links to Otto-Preminger-Institut v. Austria, the European Court of Human Rights case upholding the restriction. Elsewhere in Europe (though I realize that none of this reflects on Austria as such), a Greek court convicted a cartoonist of blasphemy in 2005 for a comic book related to Jesus, but that conviction was reversed on appeal; a Polish singer was prosecuted for insulting Christianity in 2010, but that prosecution was likewise rejected on appeal; and just this year, a Russian court banned the exhibition of a painting that alleged blasphemed Christianity.

By way of perspective, several early 1800s American cases (I know of four published opinions, Ruggles, Updegraph, Kneeland, and Murray) upheld convictions for blasphemy of Christianity, sometimes based on similar facts: People v. Ruggles (N.Y. 1811), for instance, involved a defendant who had said “Jesus Christ was a bastard and his mother must be a whore,” reasoning thus:

We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, “profane scoffing doth by little and little deface the reverence for religion;” and who adds, in another place, “two principal causes have I ever known of atheism — curious controversies and profane scoffing.” Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers, embraced the religion of the country....

The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.

But fortunately American free speech law has changed since then, and I’m disappointed that a European democracy such as Austria is, in the early 2000s, as intolerant of condemnation of religion — even harsh condemnation of religion — as was America in the early 1800s.

As reported by the Maldivian newspaper Haveeru, “President Mohamed Nasheed yesterday called on citizens to reject religious extremism and continue to support the ‘traditional form’ of Islam that has been practiced in the Maldives for the past 800 years,” and in particular said,

Should we ban music? Should we mutilate girls’ genitals? Should we allow nine year-olds to be married? Should we forbid art and drawing? Should we be allowed to take concubines? Is this nation building? ....

This is an old country, people have lived here for thousands of years and we have practised Islam for more than 800 years. In 2011, we are faced with a question, how should we build our nation: what we will teach our children, how should we live our lives and what we will leave for future generations? ...

Some people are saying that the government is going against religion because we won’t deviate from the traditional form of Islam ....

[I] asked you to come here in support of the middle, tolerant path. And I believe that most citizens want to continue our traditional form of Islam.

The AP reports that the President also said:

To build our economy we need foreign investments and we need to create an environment in which foreigners can invest ....

We can’t achieve development by going backwards to the Stone Age or being ignorant.

But the president seemed to be speaking out against a fairly popular rival movement; also from the AP story:

Thousands in the Maldives protested Friday, calling on the government to halt what they called “anti-Islamic” activities, including a plan to allow direct flights to Israel....

The protesters want authorities to stop the sale of alcohol in the islands, shut down brothels operating in the guise of massage parlors and demolish monuments gifted by other countries marking a South Asian summit last month because they see them as idols....

Debates on religious issues have emerged since a group vandalized a monument gifted by Pakistan marking a South Asian summit last month with the image of Buddha. Buddhism was part of the present Islamic republic’s history.

And note that existing Maldivian law, while perhaps not as strongly Islamic as the protesters suggested, is still quite restrictive: “The Indian Ocean archipelago of 300,000 Muslims prohibits practicing any other faith.” “An angry protest last month followed a call by United Nations High Commissioner for Human Rights Navi Pillay for the Maldives to end the punishment by flogging of women who are found to have had sex outside marriage.” “One blogger who has called for religious tolerance has been detained for more than a week by authorities who accuse him of blasphemy and of promoting anti-Islamic concepts such as gay rights.” For an earlier Maldives story, see the post titled Maldives: “Islamic Foundation Calls for Death Sentence if Apostate Fails to Repent”. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From the introduction to United States v. Bansal, a recent Third Circuit decision authored by Judge Aldisert:

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

With that said, Judge Aldisert’s opinion is still 69 pages long.

A study from the Economic Journal (2010), with the following Abstract:

We use individual-level survey and county-level expenditure data to examine the extent to which Hanukkah celebrations among US Jews are driven by the presence of Christmas. We document that Jews with young children are more likely to celebrate Hanukkah, that this effect is greater for reform Jews and for strongly-identified Jews, and that Jewish-related expenditure on Hanukkah is higher in counties with lower shares of Jews. All these findings are consistent with the hypothesis that celebration of religious holidays is designed not only for worship and enjoyment but also to provide a counterbalance for children against competing cultural influences.

Obvious, perhaps, but still interesting. Hat Tip: Justin Moyer

Reuters reports. “Islamist militant group Boko Haram ... claimed responsibility.” UPDATE: The Washington Post reports 39 deaths; I’ve updated the post title accordingly. Here’s more from the Washington Post:

Like Ilya, I was terribly saddened to learn that Professor Larry Ribstein suffered a stroke and died yesterday.  He was on the faculty when I studied at George Mason, though I never had the good fortune to have him as one of my professors.  I have, however, learned quite a bit from his scholarly and other writings, as well as from our occasional conversations.  He will be missed.

Here is the University of Illinois release and remembrances from many around the blogosphere:

• Larry Solum
• Geoff Manne (with an update collecting comments from others)
• Stephen Bainbridge
• Kim Krawiec
• Jeff Lipshaw

I am sorry to be the bearer of bad tidings during the holiday season. Unfortunately, however, I recently learned that University of Illinois law professor Larry Ribstein passed away suddenly earlier today. Larry was a well-known and highly regarded legal scholar — one of the best of his generation. He wrote extensively on corporate law, federalism, and the future of legal education.

No doubt there will be many analyses and appreciations of Larry’s outstanding contributions to scholarship over the coming days and weeks. My personal favorite among his many excellent works is his recent book The Law Market (coauthored with Erin O’Hara), which is perhaps the best recent book on the potential benefits of competition between state legal systems in American federalism. Larry is also well-known in the legal blogosphere for his insightful posts at Truth on the Market, where he wrote an excellent post on ABA accreditation of law schools just a few days ago.

I have known Larry professionally for several years, and he was always a courteous and helpful colleague, including for much younger and lesser-known scholars. I saw him give a workshop presentation just a couple months ago, where he was, as always, in excellent form. His unexpected passing comes as a terrible shock. He will be greatly missed by his family, friends, and colleagues.

UPDATE: The official memorial notice from the University of Illinois is available here.

Jefferson’s Moose, out in paperback at last! With a (pretty damned interesting) new preface by Larry Lessig. Just want Aunt Betty and Uncle Mack have been waiting for!

[Though Oxford U Press’ crack marketing team has made sure that the paperback isn’t available yet at Amazon — which, in any event, is selling the hardback at a price significantly lower than the paperback edition . . . and with free shipping!]

I’m pleased to report that our local counsel, Benjamin Souede of Angeli Law Group LLC, and I will be representing the defendant blogger in Obsidian Finance Group, LLC v. Cox (D. Or.); we will be filing a motion for new trial, and an appeal to the Ninth Circuit if the motion is denied.

Gertz v. Robert Welch, Inc. (1974) held that even private-figure libel plaintiffs (1) may not recover proven compensatory damages unless the defendant was at least negligent in its investigation, and (2) may not recover presumed or punitive damages unless the defendant knew the statement was false or recklessly disregarded a known and substantial risk that the statements were false. The District Court in Obsidian Finance held that the defendant was not entitled to the protection of Gertz, because she was not a member of the “media.” But as I’ve argued in my forthcoming University of Pennsylvania Law Review article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, the First Amendment has historically been understood as protecting people who use mass communications technology equally, whether or not they are members of the institutional media. I much look forward to litigating this case, and, I hope, getting the District Court decision reversed.