The Volokh Conspiracy

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed. . . .” Of course, he admits that his cross-cutting considerations are “competing” and therefore difficult to satisfy. Indeed, he characterizing satisfying them all as a “pipe dream.”

But I think there is an existing constitutional doctrine already limiting the commerce power of Congress that does satisfy most of Orin’s competing considerations: the doctrine established by the Court in New York v. United States (1992) in an opinion by Justice O’Connor that bars Congress from commandeering state legislatures by mandating that they enact laws.  New York has been widely accepted and applied without raising the sort insuperable line-drawing problems that concern Orin, and the underlying noncommandeering principle has been extended to bar commandeering of state executive branch officials (in Printz v. United States (1997) in an opinion by Justice Scalia) and the state judiciary (in Alden v. Maine (1999) in an opinion by Justice Kennedy). This line of cases is now 20 years old and considered well settled. Congress has been able to legislate quite extensively without running afoul of the prohibition on state mandates (though the Medicaid requirements of the Affordable Care Act are now testing the boundaries of this structural constraint). So the noncommandeering principle as applied to states seems to satisfy Orin’s Burkean concerns.

Notice that, in each of these cases, the Congress was purporting to exercise its power to regulate interstate commerce under the Commerce Clause, and the Court did not question that this was indeed the legitimate end or purpose of the challenged legislation. What was at issue was the means that Congress used to effectuate this end. In Printz, the government justified its choice of means under the Necessary and Proper Clause. Writing for the Court, Justice Scalia did not question the measure’s necessity, but concluded that the means employed was “improper.” In this respect, Justice Scalia’s decision in Printz is quite different than his concurring opinion in Raich that solely concerned the necessity of the prohibition of home-grown marijuana in states that authorized its possession and use. In Raich, no one questioned the propriety of the means that Congress had used to effectuate its commerce power. Furthermore, in none of these noncommandeering cases was this restriction on the propriety of the means chosen to effectuate the commerce power based on the protection of “liberty” in Due Process Clause of the Fifth Amendment. Instead, it was based on the “structural” principle of limited state sovereignty that the Court concluded was presupposed by the Tenth and Eleventh Amendments. While states may be regulated in how they conduct their affairs by, for example, barring them from engaging in racial or sex discrimination, and they may be barred from certain activities altogether, they may not be “mandated” to enact legislation, or enforce federal law.

Of course the obvious objection to applying the noncommandeering doctrine in the ACA challenge is not Burkean, but legal:  it is individuals and not the states who are being commandeered by the Affordable Care Act, so the existing noncommandeering doctrine does not apply. Yet the principal textual basis for the decisions in New York and Printz was the Tenth Amendment that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Tenth Amendment, therefore, protects popular as well as state sovereignty. Indeed, it protects them equally. (The Virginia legislature initially refused to ratify the Tenth Amendment precisely for this reason.)  Requiring citizens to “consent” to contracts is very much the same as requiring states to enact legislation. As the famed contracts scholar Lon Fuller wrote, the “power of the individual to effect changes in his legal relations with others [by entering contracts] is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word ‘law’ in one case and not in the other. . . .”

The principle that the people may not be commandeered is reflected in several other constitutional provisions. The Third Amendment bars the commandeering of the people’s houses to quarter the military during peacetime. (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”) The Fifth Amendment bars the commandeering of private property. (“nor shall private property be taken for public use, without just compensation.”) The Fifth Amendment also stipulates that no person “shall be compelled in any criminal case to be a witness against himself.” And the Thirteenth Amendment bars the commandeering of a person’s labor by private parties or by the government itself (“Neither slavery nor involuntary servitude . . . shall exist within the United States”).

Of course like every legal principle, there are exceptions to the noncommandeering principle. Soldiers may be quartered in private homes in wartime if authorized by law. Private property may be taken “for public use” provided “just compensation” is made.  Involuntary servitude may be imposed “as a punishment for crime whereof the party shall have been duly convicted.” In addition, the people may be “commandeered” by the federal government to serve in the military, to file federal tax returns, to serve on juries in federal court, and to serve on a posse comitatus.  The first of these exceptions, however, was expressly grounded on what the Supreme Court characterized as “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation. . . .” Likewise, the other duties can be considered duties of citizens owed to the government itself.  Moreover, none of these duties of citizenship have ever been associated with the commerce power.

While the existence of exceptions does make line drawing more difficult, this is pervasive in all of law. And the historical exceptions to the principle against commandeering the people are all specifically or narrowly defined and deeply rooted in the nation’s traditions, which is exactly the “conservative” criteria by which the Supreme Court defines exceptions to legislative powers on behalf of individual liberty under the Due Process Clause. So the relevant question is whether a duty of citizenship to buy private insurance is deeply rooted in the nation’s tradition? Or more broadly, is there “a supreme and noble duty” of American citizenship to do anything that Congress in its discretion deems it necessary to its regulation of interstate commerce?  Analyzing a claimed “duty” of citizenship the way the Supreme Court now analyzes claims of liberty would yield a ready answer.

Of course, although the noncommandeering principle is based on both the text of the Constitution (as just described), its application in this case would be “novel.” But this is due entirely to the novelty of the individual insurance mandate. Simply because the mandate is literally unprecedented, so too would be any doctrine directly addressing it, however fundamental the principle being effectuated. Printz too considered a “novel” claim of power to control state executives, requiring the identification of a new rule of law. Yet, as Justice Scalia wrote, “if . . .earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”

Barring the government from commandeering the people by imposing economic mandates upon them would not affect any other law ever enacted by Congress because such mandates are unknown in our history. Such a ruling would not bar Congress from using its tax powers when it has the political will to do so (subject, of course, to whatever doctrines now limit that power).  Such a ruling would not bar states from exercising such a power if it was authorized by a state’s constitution (subject, of course, to other constitutional limitations on state powers). Such a ruling would only require the conclusion that, just as the Constitution did not delegate to Congress the power to commandeer state legislatures as a means to exercising its commerce power, neither did it delegate the power to commander the people as a whole to enter into contractual relations with private companies.  In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.

Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:

Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years). So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon

I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.

Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.

On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.

That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.

Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.

The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5–4 political lines, and that is written in ways that echo partisan concerns. A 5–4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.

Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9–0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.

The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5–4 Breyer opinion that dismisses federalism, or is it a 8–1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?

Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.

I’m pleased to report that my colleagues in the Mayer Brown LLP Supreme Court and Appellate Practice Group — with which I’m a part-part-part-part-time Academic Affiliate — were named one of the Appellate Groups of the Year by Law360.com. It’s a very well-deserved and hard-earned honor. [UPDATE: I’m afraid I originally erred by saying we were named the one such group — it turns out we shared the honor (which as indeed titled “Appellate Group of the Year”) with Jones Day, O’Melveny, Greenberg Traurig, Gibson Dunn, and Proskauer Rose. My apologies for the mistake.]

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.

Forget Newt’s problems; the real GOP scandal is Grover’s.

I, for one, think Orin’s post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation’s Tim Sandefur, however, is not amused and offers a substantive response here.

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

Pardon the parochial posting, but I wanted to congratulate two recent graduates of GW Law (where I teach) for accepting offers to clerk for Justices at the United States Supreme Court starting this coming summer. Mark Taticchi ’10 will be clerking for Justice Kennedy, and Ryan Watson ’07 will be clerking for Justice Alito. In the last six years, since the beginning of the Roberts Court, GW Law grads have obtained clerkships from each of the five Republican-appointed Justices.

You’re no doubt 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. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented 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. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. 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, the Court will note. And the challenge therefore 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. The majority opinion will conclude:

[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.

Two Justices will dissent, one of which is Justice Alito.

How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.

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.