The Volokh Conspiracy

You’re probably familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new: It tried to force people who were outside the zone of that activity to come back into it and face penalties under federal law.

According to the challengers, this step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law. Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw. And the challenge was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. Two Justices dissented, one of which was Justice Alito. The majority opinion concluded:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

The decision was Golan v. Holder, decided Wednesday.

I’ll be speaking at Temple Law School about Rehabilitating Lochner tomorrow at noon, with commentary from Professor Robert Reinstein. The announcement is here. The event is free and open to the public, and according to the announcement, there will be “Free Jimmy Johns.”

I’ve blogged before about the New York Times’ coverage of Israel, so I thought I’d point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.

Unfortunately, it’s trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters’ and editors’ views of “proper” Israeli policy have for decades leaned far to the “left” of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.

Meanwhile the piece misses some opportunities to point out various occasions where the Times’s has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times’s Israel correspondent from August 1998–2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.

But he somehow neglects to note a much more salient point than the Times’s flirtation with Goldberg: that the head of the Times’s Middle East Bureau during Sontag’s time (and assumedly therefore Sontag’s direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we’ve since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag’s writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times’s overall Middle East coverage, and never even acknowledge Hedges’ existence.

I’m not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely.

I sometimes blog on the process of moderating blog comments. I realize it’s a bit “inside baseball,” as most readers don’t comment or run blogs that allow them. But I see Internet comment threads as a new and relatively important kind of online discussion, and I’m very interested in the conditions in which comment threads tend to be useful or just noise. In my view, having a really good comment thread is a terrific asset to a blog: It allows the post to be the beginning of a conversation, with the rest of the conversation carried on it the thread. The interesting and new question is, what are the conditions of helpful comment threads? What kind of comment policies and software leads to the best, most interesting comment threads, and which don’t?

In my experience, there are two basic conditions of strong comment threads. Here’s the first condition: Comments need to be relatively open and accessible to those using a pseudonym. If you make it too hard to comment, or you require real names, most will stay away. They won’t want to engage, for a range of personal and professional reasons.

And here’s the second condition: There needs to be some way to moderate threads to delete inappropriate comments or ban commenters who are out of line. For every one Internet commenter who is consistently thoughtful and interesting, there are X Internet commenters who are either inclined to be or can be coaxed into becoming abrasive and obnoxious. Consider the well-known “Greater Internet fuckwad theory” from the site Penny Arcade:

There’s a lot to that, with an important caveat: When the site is a popular blog with hundreds of commenters, some of the commenters will be “normal people” and some won’t. In any collection of that many people who can post at any time, there will be some stylistic quirks: There are the commenters who always bring up their pet topic, no matter the subject of the post; the commenters who see themselves as needing to wage constant battle with perceived ideological foes; the commenters who see criticism of their views as inherently objectionabe, etc. When any one can comment, everyone gets invited, and the quirky types join in with the rest.

This diversity of audience, combined with the Greater Internet Fuckwad Theory, means that unmoderated threads have a tendency to devolve into virtual food fights. That’s especially true if the topic is controversial and relies heavily on ideological priors, like current debates here at the VC on gay marriage or the individual mandate. Threads that devolve into food fights are entertaining for the subset of commenters who get a kick out of written sparring. But they come at a major cost: They tend to discourage readers and contributors interested in more thoughtful contributions. When the thread turns to muck, the readership drops dramatically: Few people want to wade through the accusations and hostility to find the few morsels of insight. So to maintain the quality of comments, there needs to be some sort of monitoring of threads.

These two conditions combine to produce what you might call the Effort Rule of commenting: Having consistently strong comment threads requires a significant effort moderating threads. Vibrant dialogue requires a relatively open door on the front end, and keeping it from devolving into a digital food fight requires significant attention to editing on the back end. But back-end moderation is always unpleasant, for two reasons. The first is that it’s work. It requires careful judgment as to where the line us, based on the editor’s necessarily limited exposure to the full range of comments. In a blog with thousands of comments a day, no blogger can be fully informed as to the full history (sometimes going back several years) as to exactly which commenter said what to whom. Judgments have to be made, but they necessarily have to be made based on exposure to a subset of the evidence.

Second, the combination of no front-end filter and back-end moderation invariably leads to accusations of bias and claims of censorship. Commenters are most hostile when the subject is deeply controversial, which means that posts on those subjects will trigger the most need for comment moderation. But these are precisely the contexts in which people with strong views tend to interpret the facts to be whatever reaffirms their priors. A great example is the forthcoming paper by Dan Kahan et. al., “‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction”, which I blogged about here: When shown a video of a protest, people evaluated whether the protest was violent based on whether they supported the cause being protested.

The same basic reasoning applies to interpreting editorial decisions on a blog. The more passionate a commenter feels about the subject, the more likely they are to interpret editing or (in extreme cases) a ban on commenters as incredibly obvious evidence of bias against them based on their viewpoints. The “Joys of Anonimus” thread from a few days ago, now at 450+ comments and counting, has a lot of examples. Anonimus’s violations of the comment policy are flagrant, and he candidly admits he ignores the comment policy and says whatever he wants, but several commenters who agree with Anonimus on the issues are deeply persuaded that the real reason he has been banned is that I disagree with the merits and I’m trying to “silence” him.

Where do these points take us? First, to the conclusion that really good Internet comment threads are rare. Good comment threads require someone with the patience to do the editing work and deal with the inevitable bias accusations, efforts to circumvent bans, etc. On a group blog, each commenter need not do that kind of work; some bloggers can free ride on the efforts of others. But there needs to be at least some amount of work put into an unpleasant task to maintain or even raise the quality of threads. That’s relatively hard to find, and that means that good comment threads will be rare.

Second, I suspect the future of Internet comment threads is a bifurcation into two sorts of threads on high-traffic sites: open and unmoderated threads, where anyone can say anything and few people read the threads; and sites with more moderation on the front end, such as requiring registration through a Facebook account. Neither of those are ideal, for the reasons stated above, but they are more stable forms of comment threads because they don’t require the same amount of work from the editor.

UPDATE: My apologies that comments were off initially; I had forgotten that the software seems to do this automatically when a post has been in draft form for more than a day or two. Comments are now open. As always, civil and relevant comments only.

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason.

Today’s U.S. Google query page has the name blacked out, and a line under the search bar that says, “Tell Congress: Please don’t censor the web!.” I suspect that it makes this among the most widely seen political ads/editorials/statements in American history, at least setting aside statements carried in standard mainstream media programming on historic occasions. Does anyone have a good sense of the number of Americans who use Google on an average day?

The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6–2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.

Conor Friedersdorf has a pretty good take-down of Rick Santorum’s reasons for opposing same-sex marriage.  Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it).  Santorum’s argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition.  Santorum writes:

A husband is a man who commits to a woman, to her and any children she may give him. He commits to his wife without any reservations, to share with her all his worldly goods and to exclude all others from this intimate communion of life. From this vow of marriage comes a wonderful and unique good: any children their union creates will have a mom and a dad united in love, in one family.

Friedersdorf responds by pointing out the wide gap between these assertions about marriage and the actual practice and legal requirements of marriage:

That’s a vision of sacramental marriage, but it ain’t civil marriage in these United States. In civil marriage, prenuptial agreements are permitted, so the man hardly shares all his worldly goods, and plenty of people marry with reservations, and without violating the law when they do so. People write their own vows too. Sometimes they say them in Vulcan! Sometimes they don’t include sexual fidelity, and if they cheat or sleep around with or sans permission they are hardly compelled to divorce. The state keeps on viewing them as being married. Alternatively, it’ll permit them to divorce and marry other people, even if they have kids. So much for “one united family.”

“That’s the special work of marriage in law — to connect things that otherwise fray and fragment: love, life, money, moms, and dads,” Santorum says. Interestingly, gay people are sometimes moms and dads, and the ones who want to marry typically seek material and emotional security — just like straight people, they’re trying to prevent love and money from fraying.

From TheNews.pl:

A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.

Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was “hard to believe in something written by someone who was hammered on wine and who’d been smoking herbs.”

The Warsaw Business Journal adds:

[T]he judge in the case, Agnieszka Jarosz, ruled that the artist’s statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right “to assess [the content of the Bible] in the context of scientific discovery but had no right to insult” the religious text.

For more on this case, see this post from when the case was filed.

Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.

All electronic devices must be turned off prior to takeoff. If you fly anywhere, you’ve almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane’s equipment. But the rule applies across the board, even to iPads in “airplane mode” and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:

I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.

“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”

But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”

I just learned this word a few days ago, so I thought I’d pass it along. What does it mean?

The TSA cupcake incident reminded me of this mysterious item I spotted at my local Whole Foods several years ago:

Some tentative thoughts from the Advancing a Free Society blog:

[T]he Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions — not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place — wholly apart from the pro forma issue — consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.

A week or two ago, I banned commenter “Anonimus,” who had become kind of famous in VC threads for his steady stream of insults to other commenters. It won’t surprise regular readers of comment threads that Anonimus hasn’t been deterred by his banning: After making the usual complaints that he was the victim of censorship, Anonimus kept commenting and insulting other commenters as before. And when I kept deleting his contributions, he eventually just switched to a new name, “Dissentus,” albeit with all the recognizable style (and IP address) used by Anonimus.

Anyway, please don’t respond to Anonimus, Dissentus, or whatever name he’ll use next. I’ll eventually get around to deleting his comments, and I’ll delete any that respond to him, too. Thanks.

UPDATE: Having called him out by “name,” it seems unsporting not to let Anonimus comment on this thread (which he has done about a dozen times already despite the ban, appropriately enough!). So I’ll let him comment in this thread, and readers who are interested in why Anonimus does what he does are invited to ask him directly and offer their thoughts.

The National Law Journal reports on a recent panel at the AALS conference on the need for changes in legal education. Readers will recall that Judge Cabranes also spoke at the same conference on the same topic, and he urged a return to traditional doctrinal classes and a reduction in “law and” classes. The National Law Journal article adds several more recommendations, such as adding a year of executive-education classes, recommended by the Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership.

Perhaps I am too cynical, but a common theme of these recommendations seems to be that students should be more directed towards the practice needs of the recommender’s speciality area. Transactional lawyers tend to suggest more transactional training, judges suggest more doctrine, etc. I suppose that’s understandable: Like the blind men with an elephant, we assume that the corner of the legal world we experience reflects the legal market as a whole. Still, that trend makes me a bit skeptical that curricular reform is the answer to current problems in legal education. This aside about employment prospects for graduates of existing programs with new “innovative” curricula seems worth noting:

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

“There’s no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven’t affected hiring patterns,” Henderson said.

Maybe that’s because employers haven’t realized the value of curricular innovations. But it might also be because curricular innovations have less of an impact on the skills and knowledge base of law school graduates than their proponents realize.

During the Obama Administration, at least.

Timothy Geithner, December 2006, Federal Reserve Meeting: “Our recent financial-market data don’t, in my view, provide a convincing case for a substantial increase in the probability of a much weaker path for growth going forward.”

David Bernstein, February 2007, Volokh Conspiracy, “America, Meet Mr. Recession?”:

Meanwhile, up to 25% of last year’s loans would not be viable under stricter underwriting standards this year! Wow! Assumedly, that percentage figure is higher in bubble markets. Given the huge role easy home financing and refinancing has played in the 2000s economic boom (some huge percentage of jobs created over the last several years were in construction and real estate, and consumer spending was boosted significantly by “using the house as an ATM”), what’s going to keep the economy afloat?

There has been a controversy brewing over allegations that several bloggers at the liberal Center for American Progress have used anti-Semitic rhetoric when criticizing Israel and its American Supporters. Critics have particularly focused on these bloggers’ use of the term “Israel-firster.”

I haven’t paid all that much attention to the controversy, but today I came across a piece by Jamie Kirchik in which he alleges that the term “Israel-firster” was first popularized by Willis Carto’s anti-Semitic The Spotlight, and that the term gradually migrated from the anti-Semitic far right to the “Progressive” left.

So I decided to do some research. I couldn’t find any online archives of The Spotlight, but here is what I did find.

The “Israel-firster” slur was not used in “mainstream” discourse until the last few years.

Before that, you can find it occasionally in the early 1980s and 1990s in sources such as Wilmot Robertson’s anti-Semitic Instauration journal, a 1988 anti-Semitic book called “The F.O.J. [Fear of Jews] Syndrome, and a 1998 anti-Semitic book “Rise of AntiChrist.” I also found a couple of references to “Israel-firsters” in the extremist anti-Israel publication, The Washington Report on Middle East Affairs, and from writers associated with this journal.

By the early 2000s, one can find “Israel-firster” being used by a variety of anti-Semitic “right-wing” sources like DavidDuke.com and the Vanguard News Network. As the decade wore on, the phrase occasionally pops up in far left anti-Israel sites that have ties to the anti-Semitic far-right or are known for playing footsie with anti-Semitism, like Antiwar.com, Norman Finkelstein’s website, and Indymedia.

Finally, over the last few years the term has become increasingly used on the anti-Israel far left, especially by blogger M. J. Rosenberg of Media Matters, who Kirchik calls the “worst offender.”

Obviously, the phrase “Israel-firster” should be expunged from reasoned discourse, regardless of its origins–it amounts, as Kirchik points out, to name calling as opposed to argument. And it certainly questions the patriotism of Jewish Americans to whom the moniker is applied, which at best potentially plays to anti-Semitic sentiment.

But is the phrase clearly anti-Semitic, even if used by those who have no anti-Semitic intent? I don’t think we need to reach that issue. Some of the “Progressive” bloggers who have used the phrase may not have been aware of its origins in the depths of unhinged neo-Nazi land.

So the question is, does your average Progressive recoil at the use of terminology that migrated recent from the far-right racist kook fringe to refer to members of minority groups? They sure do. Should they recoil less if the terminology is aimed at Jews, as opposed to other minority groups? They sure shouldn’t–unless they are themselves prejudiced against Jews.

Therefore, regardless of what cockamamie post hoc excuses they come up with (Rosenberg, for example, claims that when he talks about “Israel-firsters”, he only means “Netanyahu firsters” [in the sense they always think Netanyahu is right–if Rosenberg meant the latter, then he was being intentionally provocative, and not in a good way), if bloggers want to claim status as Progressives who are not anti-Semitic, they should treat the phrase “Israel firster” the same disdain as any other phrase that recently emerged from the sewers of racism.

UPDATE: The following passage from Kirchik’s piece is relevant: “While CAP publicly denied that its employees were trafficking in anti-Semitism, an e-mail from the organization’s vice president, obtained by The Jerusalem Post, deemed ‘Israel-firster,’ to be ‘terrible, anti-Semitic language.’” That’s further then I’d go, in the absence of proof of intent. But the point, once again, is that self-styled “Progressives,” as a rule, bend over backwards to be politically correct and hypersensitive on linguistic usage as pertains to members of minority groups. They wouldn’t deign to use the equivalent of Israel-firsters to refer to other minority groups (indeed, they’d likely be attacking “conservatives” for using such language), and if they did, they would surely take some care to examine the origins and implications of the phrase. But when it comes to using borderline anti-Semitic language, not only does sensitivity go by the wayside for certain Progressives, but they delude themselves into thinking that by ignoring Jewish sensitivities, they are “speaking truth to power.”

So I’m neither claiming that the bloggers in question are anti-Semitic, or had anti-Semitic intent, or that, in general, writers should engage in self-censorship on matters related to Israel. What I am arguing is that there is a double standard, in which standards that are applied to other groups are not applied to Jews. (I made a related point here.) [Here, for example, is Glenn Greenwald, who has prominently defended his use of “Israel Firster,” attacking John McCain for racism for engaging in rhetoric “blatantly designed to stoke raw racial resentments,” for such statements as “the usual rules do not apply” to Obama,
and questioning why Obama “refused to disclose the people who are funding his campaign.”]

Indeed, I’ve occasionally seen this justified explicitly by “anti-Zionist” leftists on the grounds that Jews, unlike other minority groups, are “powerful.” Just sixty-six years after the end of World War II, and with calls for the annihilation of Jews still emanating from a variety of rather significant sources (Hamas, Hezbollah, various radical Islamist groups, etc.), and still rather high levels of anti-Jewish prejudice even in the most enlightened countries, I think it’s rather early to proclaim that anti-Semitism is no longer a matter of significant concern for “Progressives.”

FURTHER UPDATE: “Fanatically pro-Israel” or “pro-Israel fanatic” would (and often does) serve the same rhetorical function, without either the imputation of foreign loyalties or the neo-Nazi origins.

In today’s United States v. Rehlander (1st Cir. Jan. 13, 2012), the First Circuit revisited and narrowed its precedents related to 18 U.S.C. § 922(g)(4) — the statute that bars gun possession by people who had at some point been “committed to a mental institution” — in light of the Second Amendment:

Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine’s “emergency procedure,” Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been “committed to a mental institution.” 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a “commitment” under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation....

Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.

For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a “commitment,” not “emergency hospitalization,” and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms....

[Appellants claim] that, given Heller’s pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.

We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a “commitment” for federal purposes....

Continue reading ‘A Second Amendment-ish Victory for People Who Had Been Temporarily Committed to Mental Institutions with No Adversary Proceedings’ »

I’ll be on Freedom Watch with Andrew Napolitano tonight talking about the government’s “Voluntary Guidelines” for marketing food products to children and adolescents.  My segment will appear at about 35 minutes after the hour.

Comes now the newest–and certainly one of the most welcome–additions to the blogging universe: Libertylawblog.  Featuring my friends Mike Greve and Mike Rappaport.  Sponsored by Liberty Fund, this is the law analogue to Liberty Fund’s immensely popular economics blog econlog.  I see posts by other authors there as well (including our own Ilya Somin), so I’m not certain as to what the finished product looks like.

Libertylawtalk is a serious of podcasts from the same source that you can download here.

Best wishes to Mike and Mike (perhaps it should be known as “Mikelawblog”?) and thanks to Liberty Fund for bringing this project into being.

So asks the WSJ today:

The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or “as a practical matter” one from each party) can use this process to modify the standing order in a heartbeat and conduct business.

The Senate did exactly that to pass Mr. Obama’s payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can’t be true.

That seems correct to me–that either a pro forma session is a real session or it is a recess.  It cannot simultaneously be both, can it?

This morning I received a CNN “Breaking News” alert that “President Obama said today he is elevating the Small Business Administration to a Cabinet-level agency.” My first reaction was utter disbelief. The question is whether the SBA should exist, not whether it should be a cabinet-level agency. Fortunately, the CNN report was in error. What the President is, in fact, proposing is to consolidate multiple business-related agencies, including the SBA, into a single agency. As the White House fact sheet explains:

Currently, there are six major departments and agencies that focus primarily on business and trade in the federal government. The six are: U.S. Department of Commerce’s core business and trade functions, the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.

This is redundant and inefficient. Small businesses often face a maze of agencies when looking for even the most basic answers to the most basic questions. There is a whole host of websites, toll-free numbers and customer service centers that at times offer them differing advice. The result is a system that is not working for our small businesses.

The President is proposing to consolidate those six departments and agencies into one Department with one website, one phone number and one mission – helping American businesses succeed.

This is a good idea. To be sure, I would love to see the President go even farther and consider whether the federal government needs to devote taxpayer dollars to business promotion at all. But if the government is going to be engaged in such efforts, it certainly makes sense to do so in as efficient a way as is possible, eliminating duplicative agencies and functions. This plan may only be a small step in the right direction, but given the orgy of spending over the past several years (including during the Bush Administration), a reorganization plan projected to save $3 billion over ten years is certainly a step in the right direction. Brad Plumer has more here.

Minn. Stat. Ann. § 211B.07 makes it a gross misdemeanor — I think unconstitutionally, at least as to the “spiritual injury” element — to

directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.

This morning, the U.S. Court of Appeals for the D.C. Circuit decided U.S. Department of the Navy v. FLRA, resolving a labor dispute over water.   Judge Kavanaugh’s opinion for the court begins:

This case turns on whether a government agency may provide employees with free bottled water even when safe and drinkable water is available from water fountains at their work sites. Under federal appropriations law, the answer is no.

Apparently the Navy began providing bottled water to workers at a facility in Rhode Island because some water fountains had been manufactured with lead. After the water fountains were replaced, the Navy discontinued providing the bottled water without charge because “providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees’ personal expenses.” But the Navy failed to consult with the facility’s civilian employees’ unions before making its decision. In response, the unions filed a grievance, alleging that the provision of bottled water had become a condition of employment at the facility. An arbitrator and the Federal Labor Relations Authority agreed, only to be reversed by the D.C. Circuit on the following grounds:

Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for “necessary expenses” but not for employees’ “personal expenses.” As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are “inconsistent with any Federal law.” 5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.

We therefore vacate the decision of the Federal Labor Relations Authority and remand this case to the Authority to determine whether the tap water is in fact safe to drink. If the Authority concludes that the tap water is safe to drink, the Authority must rule for the Navy.

In my last post I discussed issues involving the term of protection. I argued that there should be different terms of protection for different categories of works. If copyright law is predicated wholly or in substantial part on the need to provide incentives to create, then finding the right level of incentive is important given that different works have different levels of investment and different commercial lives. Giving all copyrighted works – from emails, lawyers’ cease-and-desist letters, software manuals, fashion magazines, maps, David Post’s Moose book, works of sculpture, and 200 million dollar movies — the same protection makes no sense if we accept the incentive rationale.

Some may misstake this as a call to weaken copyright, but as I noted in a comment on Part Deux, the term “weaken” is inappropriate here: copyright law is not a living organism, nor is it a building or other structure. The accusation of “weakening copyright” is simply a bad metaphor, used by those who support the status quo to resist basing copyright law on evidence. (“Looks like the upper hand is on the other foot”).

So what would an evidence-based approach to the term of protection look like? In Part Deux, I advocated using the approach taken by the economists in the Eldred case: figuring out what the present value/future value of an extension of term would be. This approach could also be applied to reductions in term: evidence whether any proposed reduction in term would take away meaningful amounts of present value would be important.

To date, the present value/future value approach has been applied at the macro level – to all types of works, and not as I also advocate, at the micro level for particular types of works. To do a better job at the micro level, we would need data on average commercial lives for classes of works. In the case of books, for example, Books in Print and other similar publications could be used. In 2002, Jason Schultz did a study of books still in print that were first published during the period of 1927–1946. He found that of the 187,280 books published during that period, only 2.3% were still available in 2002. Thus, the 1998 term extension kept under copyright 97.7 percent of books that were no longer in print, but which could nevertheless not be used. To better match incentives, we should want the number of books in print after a particular period to be quite a bit higher, at least 50%. Finding that number can be done, empirically.

There is a risk, though, of depriving some works that are still commercially valuable of a revenue stream. Mandatory formalities, such as affixing a copyright notice and filing a statement of a continued interest in the work can help here. There was a requirement of filing a timely renewal application with the U.S Copyright Office from 1790 to 1992 (the latter date for only some works). Failure to renew meant that copyright owners only got one term of protection, originally that was 14 years, and later it was expanded to 28 years.

The failure to renew was an empirical, market signal about the value copyright owners themselves placed on copyright. The renewal rates also showed a consistent difference in renewal rates for classes of works. The lowest renewal rates (0.4 percent) were for technical drawings, lectures, sermons, and other oral works. The highest renewal rate was for motion pictures (74 percent). Music was 48 percent and books only 7 percent. Our current one-size– fits-all approach ignores this significant data about how copyright owners have themselves valued copyright. Based on this evidence, the correct term of copyright should vary depending on the type of material being protected, with books getting a shorter term than motion pictures.

However we approach our copyright laws in the U.S., we can and should do better than we are now.

Daughters in Western cultures usually take their father’s names. (In Russia, they even take the names twice, by using the father’s first name as the basis for a patronymic and using the father’s last name as their own last name, so that the daughter of Ivan Petrov named Maria would be called Maria Ivanovna Petrova.) But I know of at least one noteworthy father who took his daughter’s name as part of his own last name. Who did this, and why?

We’re having continuing problems with delays in posting of comments; we will probably be solving it soon by shifting to a different comment hosting system (or so I hope). Sorry in the meantime for the glitches ....

If you’re generally libertarian, conservative, or centrist in your legal outlook, and are interested in going on the law teaching market, I highly recommend this program, which offers a stipend of $50,000 plus benefits, as well as office space at a law school. The application is due March 15, 2012.

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »

Matt Drudge and The Atlantic are hyperventilating, and Mark Hosenball of Reuters is bragging, about what The Atlantic calls an “exclusive” report that DHS “routinely monitors dozens of popular websites, including Facebook, Twitter, Hulu, WikiLeaks and news and gossip sites including the Huffington Post and Drudge Report.”

There are just two problems with this exclusive news report.

It isn’t news and it isn’t exclusive.

Readers of this blog could have learned exactly the same thing in one of my posts from, uh, February of 2010.

Here’s what I said two years ago:

With his usual nudge-and-wink, Matt Drudge invites us to be dismayed that “BIG SIS” — his moniker for Janet Napolitano — is “Monitoring Web Sites for Terror and Disaster Info.” Drudge links to a story saying that DHS will be monitoring social media like Twitter, as well as websites like Drudge, to keep abreast of events during the Winter Olympics. The source of the story is a twelve-page “Privacy Impact Assessment” issued by DHS.

This isn’t the first Privacy Impact Assessment (PIA) on DHS’s use of social media. A few weeks earlier, DHS wrote a similar assessment of using social media during Haitian rescue operations.

I am indeed dismayed, but not for Drudge’s reasons.  True, it’s disappointing that neither the Volokh Conspiracy nor www.skatingonstilts.com is deemed worthy of government monitoring.  But what’s really dismaying is that DHS and its Privacy Office felt obliged to labor over two separate and painfully obvious privacy assessments just to do things that you and I would do by simply firing up our browsers.

That’s it.  The story is that people at DHS are, gasp, browsing the Internet. As I said then, there’s no scandal, other than the electrons wasted by DHS agonizing over the privacy implications of browsing public Internet sources to find out what’s happening in the world.

And if it was a nonstory in February of 2010, what does that make it in January of 2012?

Actually, it’s a lesson — that both the mainstream media and the blogosphere are doggedly overreporting anything that could be deemed a privacy violation by government, especially DHS.  If you only followed these things casually, you’d be sure that DHS was constantly violating Americans’ rights, and reports like this would be a key bit of evidence.  But when you give the “story” a little scrutiny, all you find is an agency that needs to know what’s happening in an emergency and that is looking at public social media sites for information, just like the rest of us.  There’s no privacy issue there at all, despite the heavy breathing and the headlines.

Kind of makes you wonder how many more phony privacy violations you’ve been conned into believing, huh?

UPDATE: Mark Hosenball of Reuters says that he never called his report an exclusive, since he knew about the 2010 assessment; the “exclusive” label was applied by The Atlantic, not Hosenball.  I changed the first line to avoid tagging him with the statement.

I’m pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief [UPDATE: link fixed] in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here.

Minn. Stats. Ann. § 10A.36 makes it a gross misdemeanor for “[a]n individual or association” to “engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity.” There is an exception for “compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.”

As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his “political activity.” Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person’s political activities?

Should the answer be different when we’re talking about reprisals by customers, vendors, contractors, landlords, or employers? Many states impose such restrictions on employers’ firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their tenants for political activity, but the Minnesota statute is the only I could find that bans “economic reprisals” more broadly. (I set aside the ban on threats of physical coercion, which I think are rightly prohibited.)

I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.

I share David Kopel’s disapproval of Mercedes-Benz’s use of Che Guevara in its promotional activities. But while I would fault Mercedes for that, I wouldn’t fault it for the corporation’s activities in World War II.

As I’ve mentioned before with regard to corporations and speech, we have to recognize that corporate action and corporate responsibility is something of a metaphor. Corporations don’t misbehave, speak, think, and so on. People acting on behalf of corporations do. I support applying the First Amendment to the “speech of corporations” because I think the restrictions on such speech end up interfering with the rights of people, both as listeners and as people who associate in order to create an enterprise in which some of the employees speak on the enterprise’s behalf. “Corporations have First Amendment rights” is useful shorthand for conveying that, but we have to recognize that it’s just shorthand.

And because this is just shorthand, I find it hard to fault the Mercedes-Benz of today for the actions of the Mercedes-Benz of the Nazi era. Whatever Mercedes-Benz officers and employees did then is their responsibility — not the responsibility of the very different people who run the company today. And that action during the Nazi era strikes me as not really relevant to Mercedes-Benz’s current actions, or to what should be our attitudes with regard to the company and its products today.