I apologize for my recent blogging slowdown

Between grading and finishing final edits for the manuscript (both due next week), I haven’t had nearly enough time of late. Fortunately, SCOTUS did not give us any huge opinions today. That would’ve been too distracting!

Is Houston the Most Libertarian City in America?

The WSJ profiles Annise Parker, the mayor of my new hometown, Houston. The interview touches on a lot of the reasons why Houston has become such an economic success story. One discussion in particular stuck out–that Houston is the most “libertarian” city in the country. Among other evidence cited is Houston’s lack of a zoning code:

Like Texas as a whole, Houston sells itself as “business friendly,” and Ms. Parker ticks off the attractions—ease of permitting, unobtrusive regulations and low taxes. She also supports Houston’s limited restrictions on land use, which some here call its real secret sauce. Without zoning, Houston can adjust to shifting market demands—whether for townhouse complexes or retail outfits—faster than most any other city. It looks unwieldy to anyone of the urban-planning persuasion, but it also keeps prices down.

Tory Gattis, who writes the Houston Strategies blog, says: “I’d argue we may be the most libertarian city in America. Live and let live; strong property rights; not much corruption; small business culture.”

While it is true that Houston lacks a formal zoning code, the city has implemented a number of land-use measures–including minimum lot sizes, mandatory parking allocations, street sizes, etc–that serve as a de facto zoning code. However, the entirety of Houston’s land use regime can be taught in a single property class (such as this one).

The same cannot be said for New York, or any other comparably-sized city.

But does this make Houston the most libertarian city in America? Mercatus ranked Texas as the 14th most free state in the country, but is number one for labor market freedom:

Texas is first in the country in terms of labor market freedom. It is a right-to-work state and remains the only state not to require employers to contribute to workers’ compensation coverage. Indeed, it has excellent workers’ compensation laws overall. While Texas has only light community rating and no individual rate review, it has imposed mandated coverages on health insurance that add significantly to the cost of insurance premiums (it is two standard deviations above the mean on them). Texas led on telecom and cable deregulation. It has also passed eminent domain reform and performs well on land-use regulation. The state’s liability system is below average, however.

Where it suffers though is with respect to personal freedom, where it doesn’t crack the top ten.

AP CEO On “Unconstitutional” Seizure of Phone Records

The president and chief executive officer of The Associated Press on Sunday called the government’s secret seizure of two months of reporters’ phone records “unconstitutional” and said the news cooperative had not ruled out legal action against the Justice Department.

Gary Pruitt, in his first television interviews since it was revealed the Justice Department subpoenaed phone records of AP reporters and editors, said the move already has had a chilling effect on journalism. Pruitt said the seizure has made sources less willing to talk to AP journalists and, in the long term, could limit Americans’ information from all news outlets.

Pruitt told CBS’ ”Face the Nation” that the government has no business monitoring the AP’s newsgathering activities.

“And if they restrict that apparatus … the people of the United States will only know what the government wants them to know and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment,” he said.

You know it’s serious when they start invoking the Framers of the First Amendment (not the Constitution, as the Bill of Rights came a few years later).

Obama’s Inconsistency On Executive Power

WaPo has an interesting piece that explores why in some cases, the President has been an Uber-commander in Chief (essentially following the role of GWBush), and in others, he has merely voted present.

Obama has been willing to push the bounds of executive power when it comes to making life-and-death decisions about drone strikes on suspected terrorists or instituting new greenhouse gas emission standards for cars.

But at other times he has been skittish. When immigration activists first urged him to halt deportations of many illegal immigrants, for instance, Obama said he didn’t have the authority to do so. He eventually gave in after months of public protest and private pressure from immigrant and Hispanic advocates, granting relief to certain people who had been brought to the United States as children.

And at key moments, Obama has opted against power plays. In the 2011 debt-ceiling fight, Obama ruled out unilaterally raising the country’s borrowing limit even though some constitutional scholars, as well as many of his political allies, believed doing so was well within his authority.

Larry Tribe–who in the past has come to the President’s rescue on a number of criticisms–even notes this inconsistent application of executive power:

Still, the advisers acknowledge, Obama’s sometimes-yes, sometimes-no approach can give the appearance that he’s all over the map. Four-and-a-half years in, they said, he still is figuring out how to strike the right balance.

“He is deeply concerned both that his office . . . never violate its primary duty to abide by the Constitution’s checks and balances and that he nonetheless exercise those powers to the limit as needed to protect the nation and its people,” said Laurence Tribe, a Harvard Law professor who has been a mentor of Obama’s for two decades and served briefly in Obama’s Justice Department.

Still, Tribe expressed concern that Obama, himself a former law instructor, “is being a bit too much the constitutional lawyer in some of these matters and not enough the ordinary citizen, sharing the anger that ordinary citizens understandably feel but flexing the muscles that no citizen other than Barack Obama possesses.”

LOL. Acting like a constitutional lawyer is an insult.

And this constitutional lawyer refused to rely on his powers under the 14th Amendment during the debt ceiling crisis (no trillion dollar platinum coins!)

Many Democrats believed Obama should have used his executive authority to lift the debt ceiling — a move advocates argued was legal under the 14th Amendment. Former president Bill Clinton said at the time he would have invoked that authority and “force the courts to stop me.”

Even the threat of invoking the 14th Amendment would have neutralized the GOP’s leverage, many felt. And yet Obama, believing such a move to be unconstitutional, ruled out the idea. White House aides said it was not only illegal, but also impractical for the president to take such a drastic step.

William Howell, a University of Chicago political scientist, cites the episode as a low point for Obama in a new book titled, “Thinking About the Presidency: The Primacy of Power.”

“He may have been right on his concerns about constitutionality, but it was costly,” Howell said. “There was a sense of executive impotence in a heightened moment of crisis.”

Of course, he pushed forward with the ACA, despite constitutional concerns–though at the time, those concerns were far flung off the wall. As I discuss in Unprecedented, it was the President’s determination to complete his “legacy” that motivated him to pass the ACA at all costs, with the full weight of the White House behind it.

Judge Motz: NFIB “puts a new light” on the Commerce Clause

Following the Supreme Court’s opinion in NFIB v. Sebelius, to the surprise of some, the Justices remanded the case of Liberty University v. Geithner. This case, which considered not only the individual mandate, but also the contraceptives mandate, was not definitively resolved by NFIB. Yesterday, the Fourth Circuit heard oral arguments, with the same panel that two years ago dismissed the challenge under the AIA.

According to a report from Politico (I haven’t seen the transcripts), Judge Motz had a very distinct view of the commerce clause following NFIB.

Klein argued that Congress has a long history of regulating employer health plans under the Commerce Clause — and that the employer mandate is no different.

But Motz suggested that last year’s health law ruling in the case brought by 26 states and the National Federation of Independent Business — in which the Supreme Court said the individual mandate is not valid under the Commerce Clause but valid under the taxing power — put new restrictions on the Commerce Clause.

“The Supreme Court opinion puts a new light, it seems to me, on the Commerce Clause,” Motz said. “It sounds like we’re in a new regime [post] NFIB.”

I think Judge Motz’s characterization of our “new regime” after NFIB is accurate. Her comment is a different way of describing what Larry Solum has referred to as our shifted “constitutional gestalt.” The gestalt is the notion that although NFIB did not repudiate the New Deal settlement, going forward, the scope of the federal government’s authority will be open to constitutional contestation.

I discuss this theme in my book, Unprecedented, and added this great quotation from Judge Motz:

Perhaps more importantly, beyond constitutional doctrine, NFIB v. Sebelius altered our collective consciousness about the relationship between the federal government and individual liberty. By shifting what Prof. Larry Solum has referred to as the “constitutional gestalt,” NFIB has forced us to rethink our assumptions about what we thought was settled law.  In May 2013 during oral arguments over a followup case about the Affordable Care Act, Judge Diana Gribbon Motz observed that NFIB “puts a new light, it seems to me, on the Commerce Clause.” The Fourth Circuit judge, who two years earlier had dismissed a challenge to the ACA under the Anti-Injunction Act without addressing the commerce clause analysis, added, “it sounds like we’re in a new regime [post] NFIB.” Judge Motz is correct. NFIB has forced us to rethink our assumptions about what we thought was settled law.

H/T Randy Barnett

When A Data Service Provider Becomes A Competitor

One of the more interesting elements of the Bloomberg data scandal (the financial services company, not the may0r), is the realization that companies that historically provide data services to players in an established industry can easily become a competitor–using the very data the players provided.

Dealbook reports:

Long thought of as a company that serves the needs of Wall Street firms,Bloomberg L.P. is quietly becoming more like them, moving recently into businesses that have been the domain of the largest banks.

This relatively unheralded expansion by Bloomberg helps explain Wall Street’s consternation at recent disclosures that some customer data was freely available to reporters and others inside the company. The fear inside banks is that Bloomberg could use that data not only to write negative news articles but also to compete directly.

In recent years, Bloomberg has offered new ways to trade stocks, bonds and more complicated financial products, potentially taking revenue from subscribers to the ubiquitous Bloomberg desktop terminals, which contain a vast store of market data. The expansion is even leading Bloomberg to offer traditional Wall Street services like wealth management and research.

“If you add all this stuff up together, they do look increasingly like a brokerage business,” said Larry Tabb, founder of the consulting firm Tabb Group.

He said that Bloomberg was not yet a dominant force in these activities and had been careful to placate the concerns of subscribers. But, he said, “it makes some of these brokers think, are these guys friend or foe?”

Having access to data allows companies to compete in novel ways. Perhaps one example is Google. Google started off as a simple search engine that indexed other people data. But by aggregating and collecting all of the world’s information, and recording and tracking search behavior, which improves algorithm, now Google can compete in a host of different industries that were unforeseeable a decade ago. Now, when you do a search for something, a Google service is likely to come up at top.

There may be similar moves afoot in legal-data service companies that may begin selling legal services.

Recently I was chatting with the President of a legal tech startup. The tool provides innovative ways of allowing attorneys to conduct legal research based on legal rules. That is, instead of simply searching for keywords, and hoping a precedent pops up that is relevant, the tool can service answers based on searches for specific rules of law. The tool is amazing.

But, offering that service raises a host of questions. The algorithm will be refined based on searches by lawyers. It is not hard to see how tracking the types fo search and research a lawyer, from a specific firm, can reveal a lot of inside information about how a firm may be litigating a case. I’m sure WestLaw and Lexis have had access to this information for a very long time. But, what happens when the software becomes more sophisticated, and becomes more indicative of litigation strategy, rather than just research trails. This is very, very valuable information. Now, it could be used in an innocuous way–this firm is litigating a case in a certain manner that persuaded a judge, so lets train our algorithms to suggest that other lawyers litigate a case a similar way. Or, it could be used in a nefarious way–let’s obtain access to how opposing counsel is litigating a case during trial, whether by authorized, or unauthorized access.

Traditionally, the rules of professional conduct would inhibit such conflicts of interest, or even general breaches of fiduciary duty may limit this. But the very manner in which algorithms are improved is by analyzing previous usage. And when the data can be aggregated or attributed to a specific law firm–say for example a program can analyze how a particular attorney prosecutes a specific case–it gets tricky.

Bloomberg seems to be addressing this separation:

Bloomberg says its trading operations are walled off from its data operations and asserts that it has won the trust of clients over the years. The company is eager to protect both its revenue and the wealth of Michael R. Bloomberg, which are still primarily generated by the terminals business.

I’ll address this more in Robot, Esq.

Third-Party Litigation Financing and the Need for more litigation

Third-party Litigation Financing would allow parties not involved in a case to fund litigation. This has the potential of flooding millions, if not billions of dollars into the legal services market. The ABA Journal looks at a proposal of one professor who sees great potential for this new model.

Borden refers to such financing by the acronym TPLF and explains that the funding foots the bill for litigation in exchange for a share of the recovery. “The hundreds of millions (and perhaps billions) of dollars of TPLF undoubtedly will drive up the demand for litigation attorneys,” Borden says. But the ripple effect of additional litigation will also will also spur businesses to hire more transactional and regulatory lawyers, he says, in an effort to head off litigation with properly structured transactions.

Borden notes a decline in BigLaw hiring, a drop in law school applications and a reduction in law grads, creating “a relative dearth of attorneys.” But he sees a turnaround on the horizon. An improving economy, TPLF and a smaller supply of lawyers “portend a perfect storm that will hit the legal market,” he says.

“The demand for legal services will inevitably turn to favor attorneys,” Borden writes. “When that happens, the lack of attorneys in the pipeline will create a substantial shortage of qualified attorneys. For law firms to meet the new demand for legal services, they will have to aggressively recruit the top law graduates. To entice them to join their firms, law firms will have to raise starting salaries to unprecedented heights, creating a market reversal of epic proportions.”

Of course how will firms decide which cases to invest in–that’s where legal prediction algorithms come into play. Call me, maybe.

Nudging Hotel Guests Towards Restful Sleep

I stay at way too many hotels, and I have had too many restless nights due to noisy neighbors. Calls to the front desk seldom resolve the issue, so i have taken to travelling with a pair of ear plugs. They are dirt cheap, but can make a hotel stay priceless. Recently, I have started to see hotels offer ear plugs right in the room

At the Marriott Courtyard in New Haven, a card next to the ear plugs was very direct in its message.

These cheap ear plugs can probably resolve many noise complaints without the hotel having to do anything. Ear plugs are far more effective than a manager pounding on someone’s door at 2 in the morning.

Just don’t sleep through your alarm clock with the earlplugs in–it happens. I’ve found a vibrating ring tone on the nightstand is more discernible .

The Electrical Umpire

As far back as 1939, futurists envisioned replacing the baseball umpire with a machine!

In the summer of 1939, Popular Science peered into the fantastical future of athleticswith a story headlined “New Inventions in the Field of Sports.” In between the “merry-go-round training machine” for rowers, and a proposal for polo on horses in water — a “thrilling new aquatic sport” — there was a futurist gem: the Electrical Umpire.

A quarter-page illustration detailed the intricate system of light beams comprising the guts of the (entirely fictional) machine. “Electric eyes” several feet to the left and right of each batter would determine whether the ball passed through the strike zone, defined as the area from the upper chest down to the knees. A projector strung along a clothesline 10 feet overhead would shoot light straight down at a mirror under home plate and recognize if the ball passed over the plate, if it had broken the vertical beam of light. When a pitch satisfied those two criteria — in the strike zone and over the plate — an indicator light signaled a strike.

Now, if only John Roberts could be digitized.

Will the individual mandate’s penalty keep pace with sky-rocketing insurance premiums?

The Washington Examiner reports on a House Energy and Commerce Committee report that suggests that health insurance costs will continue to increase.

The report found that individuals will face “premium increases of nearly 100 percent on average, with potential highs eclipsing 400 percent. Meanwhile, small businesses can expect average premium increases in the small group market of up to 50 percent, with potential highs over 100 percent.”

One company said that new participants in the individual market could see a premium increase of 413 percent when new requirements on age rating and required benefits are taken into account, said the report. “The average yearly cost for a new customer in the individual market grows from $1,896 to $3,708 — a $1,812 cost increase,” it added.

The individual mandate, when fully phased in, will be roughly $1,000 a year. With these rising premiums, it becomes more and more rational for young, healthy, people to choose not to buy insurance. Politically, there is no way Congress would ever take the necessary steps to increase the mandate. Constitutionally, if the penalty rises to be greater than the cost of insurance, under the Roberts savings construction, it becomes suspect. This is a point I address at some length in my book. I suspect this issue will be with us for some time.

“Quantitative Legal Prediction”

My good friend and colleague Dan Katz has published a very important new article, titled “Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry.”

Here is the abstract:

Do I Have a Case? What is Our Likely Exposure? How much is this Going to Cost? What will happen if we leave this particular provision out of this contract? How can we best staff this particular legal matter? These are core questions asked by sophisticated clients such as general counsels as well as consumers at the retail level. Whether generated by a mental model or a sophisticated algorithm, prediction is a core component of the guidance that lawyers offer. Indeed, it is by generating informed answers to these types of questions that many lawyers earn their respective wage.

Every single day lawyers and law firms are providing predictions to their clients regarding their prospects in litigation and the cost associated with its pursuit (defense). How are these predictions being generated? Precisely what data or model is being leveraged? Could a subset of these predictions be improved by access to outcome data in a large number of ‘similar’ cases. Simply put, the answer is yes. Quantitative legal prediction already plays a significant role in certain practice areas and this role is likely increase as greater access to appropriate legal data becomes available.

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law’s Information Revolution and yeah – there is going to be math on the exam.

Dan’s work dovetails very nicely with my work on assisted decision making, and follows in the bold footsteps of Larry Ribstein’s work. Dan and I tend to be something of a travelling road show, and I’ve seen him present this paper a number of times.

In the future, the cost of anonymity will be irrelevance

I recently started reading “The New Digital Age” by Eric Schmidt and Jared Cohen. There is not much substance to the book (Evgeny Morozov would have a field day), but it makes a number of interesting predictions and comments about how current trends in technology will develop. One discussion stuck out about the need in the future to have more verified accounts. If your account is not verified–perhaps because you do not want to share information with social networks–you will be buried and suppressed in the search results, and made irrelevant.

Your online identity in the future is unlikely to be a simple Facebook page; instead it will be a constellation of profiles, from every online activity, that will be verified and perhaps even regulated by the government. Imagine all of your accounts— Facebook, Twitter, Skype, Google +, Netflix, New York Times subscription— linked to an “official profile.” Within search results, information tied to verified online profiles will be ranked higher than content without such verification, which will result in most users naturally clicking on the top (verified) results. The true cost of remaining anonymous, then, might be irrelevance; even the most fascinating content, if tied to an anonymous profile, simply won’t be seen because of its excessively low ranking.

Think about that for a second. As it stands now, the stories you see in your Facebook feed are not those of all of your friends. Rather, they are the stories that Facebooks thinks you may want to see. If facebook deems one of your friends not someone who interests you, then you will not see those updates. This has already happened to me. Facebook has buried a number of my friends, and I’ve missed updates that I would otherwise have wanted. Now, imagine that the key to being promoted on Facebook is through validating your account by providing personally identifiable information. Those who choose not to provide this information will disappear into obscurity.

One of the more troubling concepts is that certain states–most likely authoritarian regimes–will force people to obtain verified accounts.

Some governments will consider it too risky to have thousands of anonymous, untraceable and unverified citizens—“ hidden people”; they’ll want to know who is associated with each online account, and will require verification, at a state level, in order to exert control over the virtual world.

And even if such laws could not be passed in the United States, I could imagine various consumer privacy laws, passed with the intent of protecting data security, could arrive at this result indirectly. As Schmidt and Cohen note:

And, in the slightly less totalitarian autocracies, if the governments haven’t already mandated “official” government-verified profiles, they’ll certainly try to influence and control existing online identities with laws and monitoring techniques. They could pass laws that require social-networking profiles to contain certain personal information, like home address and mobile number, so that users are easier to monitor. They might build sophisticated computer algorithms that allow them to roam citizens’ public profiles looking for omissions of mandated information or the presence of inappropriate content.

Last week I was at a conference at Yale Law School, and commented on a paper that argued that in order to promote more free expression online, the government should take steps to intervene in the policing of social media accounts. The paper was vague on specifics, but suggested that the government could mandate that certain process be provided before terminating a social media account, or perhaps that search engines could not arbitrarily disappear a person (as I suggested above).

While I shared the paper’s concerns that Google or Facebook shuttering people into obscurity is bad for society, the prospect of the government interjecting itself into this process, and taking steps to force people into providing these kinds of information troubles me much, much more.

Especially because society’s desire to broadcast all aspects of life through social media has the effect of building the surveillance network that George Orwell could only have dreamed of.

But authoritarian regimes will put up a vicious fight. They will leverage the permanence of information and their control over mobile and Internet service providers to create an environment of heightened vulnerability for their citizens. What little privacy existed before will be long gone, because the handsets that citizens have with them at all times will double as the surveillance bugs regimes have long wished they could put in people’s homes. Technological solutions will protect only a distinct technically savvy minority, and only temporarily. Regimes will compromise devices before they are sold, giving them access to what everybody says, types and shares in public and in private. Citizens will be oblivious to how they might be vulnerable to giving up their own secrets. They will accidentally provide usable intelligence on themselves— particularly if they have an active online social life— and the state will use that to draw damning conclusions about who they are and what they might be up to. State-initiated malware and human error will give regimes more intelligence on their citizens than they could ever gather through non-digital means. Networks of citizens, offered desirable incentives by the state, will inform on their fellows. And the technology already exists for regimes to commandeer the cameras on laptops, virtually invade a dissident’s home without his or her knowledge, and both listen to and watch everything that is said and done there.

See also my previous work on privacy and social media after the Boston Marathon Bombers.

I’ll have more to say about this topic–particularly how the conceptualization of this type of data as protected speech may serve as a waning bulwark against the trek towards the dangers of this new digital age.

Pareto Optimality at 30,000 Feet

Recently, I boarded a flight from Seattle to Houston. I was in seat 10C, an aisle seat. The middle seat next to me, 10B was empty. Across the aisle, 10E, the middle seat was also empty.

A mother and father, holding a young infant, were complaining to the flight attendant that they wanted to sit together, but there were no other seats next to each other. I volunteered to move from my aisle seat (10C–which I paid more for, United EconomyPlus) to the middle seat, 10B. Now, I was sandwiched next to a mom holding a crying baby. Lovely.

A few moments later, the mom passed the baby over to the dad, who was now sitting in the other middle seat, 10E. This was going to be the routine. Pass the crying baby across the aisle.

The guy who was sitting in 10F, the other aisle seat, made a smart decision. He offered to switch seats with the mom sitting next to me. Now, the mom and dad were sitting next to each other with baby in 10E and 10F. I’m still in the middle, but minus the crying baby.

These exchanges were Pareto Optimal. Had I remained in my aisle seat, and not volunteered a change, I would’ve had a crying baby next to me. Likewise, if the guy in 10F stayed in his seat, he also would’ve had to sit near a crying baby. Plus, the disruption of passing the crying baby back and forth. Now, both of us, who volunteered to take different seats, are slightly better off than if we had stayed put. The only person who is worse off is 10D, who remains next to the crying baby in the window seat.

Nixon and Obama do share one thing in common

Both Presidents tried to enact comprehensive health care reform that would have ensured that all Americans have access to affordable health insurance. Neither succeeded.

Read Nixon’s speech. It is stunning that such words came from a Republican in 1974:

Without adequate health care, no one can make full use of his or her talents and opportunities. It is thus just as important that economic, racial and social barriers not stand in the way of good health care as it is to eliminate those barriers to a good education and a good job.

Three years ago, I proposed a major health insurance program to the Congress, seeking to guarantee adequate financing of health care on a nationwide basis. That proposal generated

…

The plan is organized around seven principles:

First, it offers every American an opportunity to obtain a balanced, comprehensive range of health insurance benefits;

Second, it will cost no American more than he can afford to pay;
Third, it builds on the strength and diversity of our existing public and private systems of health financing and harmonizes them into an overall system;

Fourth, it uses public funds only where needed and requires no new Federal taxes;

Fifth, it would maintain freedom of choice by patients and ensure that doctors work for their patient, not for the Federal Government.

Sixth, it encourages more effective use of our health care resources;

And finally, it is organized so that all parties would have a direct stake in making the system work–consumer, provider, insurer, State governments and the Federal Government.

Alacrity aside, the comparisons between Obama and Nixon are starting to appear more viable. If you’re interested in a different take on Nixon, check out my friends Penny Lane and Brian Frye, who produced this awesome documentary, “Our Nixon,” that involves the home-movies taken inside the Nixon White house.

Update: This piece from John Yoo is too precious:

The Justice Department’s seizure of the AP’s phone records shows that this administration cares far more about power than political and civil liberty.  It has intruded on the freedom of the press in ways that the allegedly power-hungry Bush Administration would never have dreamed.

When the Bush administration was wracked with the leaks of classified information about its counter-terrorism policies, most notably its interrogation and electronic surveillance programs, Democrats in Congress happily took advantage of the information. Nary a peep was heard about protecting national security and preventing the media from publishing classified information.

But now President Obama has to live in the leak-happy world that he and his colleagues created to undermine the last administration. And they don’t like it. Unlike the Bush administration, however, they are willing to go to lengths that threaten the freedom of the press to stop it — this administration has conducted far more investigations and prosecutions for leaking than its predecessors. And, for the most part, this administration has gotten away with it from the press, which has given them a pass on civil liberties compared to how they treated Republicans.

Oh, and by the way, the Associated Press is a Corporation Invoking First Amendments

Yes, the AP may be relying on the Press Clause, rather than the free speech clause, but if a complaint is filed in court, you can bet that the speech clause would be evoked. And the letter is not being invoked on behalf of individual journalists acting independently, but on the “newsgathering activities of the Associated Press.”

H/T Greg for the reminder

Minnesota Legalizes Mariage Equality, Reverses Baker v. Nelson

How far have we come from Baker v. Nelson (1972), in which the Supreme Court of the United States dismissed an appeal from the Minnesota Supreme Court “For want of a substantial federal question.” Nelson, of course, held that Minnesota law–which was silent as to gender–limited marriage to a man and a woman.

Perhaps most noteworthy, in his brief, the Solicitor General said that Baker v. Nelson was not controlling on the Prop 8 case.

Contrary to petitioners’ contention (Br. 27-28), this Court’s one-line summary dismissal in Baker v. Nelson ,409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying mar-riage status to a same-sex couple, neither forecloses theapplication of heightened scrutiny nor dictates the resultin this case. Summary dispositions are “not of the sameprecedential value as would be an opinion of this Courttreating the question on the merits.” Edelman v. Jor-dan , 415 U.S. 651, 670-671 (1974); see Massachusetts Bd. of Ret. v. Murgia , 427 U.S. 307, 309 n.1 (1976) (percuriam). In any event, neither the underlying statesupreme court decision, Baker v. Nelson , 191 N.W.2d185, 187 (Minn. 1971), nor the questions presented in theplaintiffs’ jurisdictional statement, addressed the ap-plicability of heightened scrutiny to classifications basedon sexual orientation, 12-307 J.A. 559; see also id. at 570(describing equal protection challenge as based on the“arbitrary” nature of the state law); id. at 574 (statingthat “[t]he discrimination in this case is one of gender”)

This was most certainly wrong, but it doesn’t matter. Justice Ginsburg concurred during oral arguments:

Cooper: The issues, the constitutional issues that 10 have been presented to the Court, are not of first 11 impression here. In Baker v. Nelson, this Court 12 unanimously dismissed for want of a substantial Federal 13 question.

JUSTICE GINSBURG: Mr. Cooper, Baker v. 15 Nelson was 1971. The Supreme Court hadn’t even decided 16 that gender-based classifications get any kind of 17 heightened scrutiny.

MR. COOPER: That is –

JUSTICE GINSBURG: And the same-sex intimate 20 conduct was considered criminal in many States in 1971, 21 so I don’t think we can extract much in Baker v. Nelson.

MR. COOPER: Well, Your Honor, certainly I 23 acknowledge the precedential limitations of a summary 24 dismissal. But Baker v. Nelson also came fairly fast on 25 the heels of the Loving decision. And, Your Honor, I 1 simply make the observation that it seems implausible in 2 the extreme, frankly, for nine justices to have — to 3 have seen no substantial Federal question if it is true, 4 as the Respondents maintain, that the traditional 5 definition of marriage insofar as — insofar as it does 6 not include same-sex couples, insofar as it is a gender 7 definition is irrational and can only be explained, can 8 only be explained, as a result of anti-gay malice and a 9 bare desire to harm.

Of course, RBG argued all those gender cases.

Almost forty years later, the Minnesota legislature has enacted a law that would allow same-sex couples to marry. Minnesota is now the 12th state to legalize SSM.

President of AP Blasts Attorney General Ashcroft For “Unprecedented Intrusion” by Monitoring Journalist Telephone Records

Oh did I say Ashcroft? I meant Holder.

 The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP.

In all, the government seized those records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown but more than 100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.

They really are hard to tell apart some time.

Don’t Blame The Bean!

Justice Kagan continues to delight with this gem from Bowman v. Monsanto:

Still, Bowman has another seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of Monsanto’s patented invention. Brief for Petitioner 42; see Tr. of Oral Arg. 14 (“[F]armers, when they plant seeds, they don’t exercise any control . . . over their crop” or “over the creative process”). But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops.

This pithy ten page opinion took less than two months to complete (it was argued on Feb. 19). That’s fast!

When Prince Harry Visited Arlington Cemetery, I Wonder If He Paid Respects To Those Killed In The War of 1812

Does anyone know how the British view the War of 1812? It didn’t really change anything, but resolved some lingering issues from the Revolution. Wikipedia notes:

The war is scarcely remembered in Britain today, as it regarded the conflict as sideshow to the much larger Napoleonic Wars raging in Europe.

…

By the 21st century it was a forgotten war in Britain and Quebec^{[citation needed]}, although still remembered in the rest of Canada, especially Ontario. In a 2009 poll, 37% of Canadians said the war was a Canadian victory, 9% said the U.S. won, 15% called it a draw, and 39%—mainly younger Canadians—said they knew too little to comment.

And yes, there is actually a memorial at Arlington for fourteen unknown soldiers and sailors who died in the war of 1812 against the British.

In 1905, workers completing some construction projects at the present site of the Washington Navy Yard discovered the remains of fourteen (14) soldiers of the War of 1812. These unknown soldiers were interred in Arlington National Cemetery later that same year. In April 1976, the memorial which appears below was dedicated by the National Society of the United States Daughters of the War of 1812.

It doesn’t look like he did.

Attorney General Ashcroft Delivers Commencement Address At Berkeley Amid Protesters Demanding Closure of Guantanamo Bay

Oh did I say Attorney General Ashcroft? I meant Attorney General Holder.

With protesters outside demanding closure of the Guantanamo Bay detention center, U.S. Attorney General Eric Holder on Saturday gave an unambiguous endorsement of the civilian court system to try suspected terrorists, telling UC Berkeley Law School graduates that failing to do so “would weaken our ability … to punish those who target our people.”

…

Before Holder spoke, a handful of demonstrators clustered on the sidewalk with large signs, protesting the federal criminalization of marijuana, the continued detention of alleged terror suspects at Guantanamo Bay and the alleged use of torture on prisoners following the Sept. 11, 2001, terror attacks.

One man in an orange prison-style jumpsuit blasted the federal government for “locking people up and throwing away the key” at Guantanamo Bay.

Mary Ann Thomas of Oakland handed out orange ribbons to denote the orange jumpsuits worn by Guantanamo Bay prisoners. A few steps away, people distributed flyers urging new law graduates to work for a marijuana advocacy group. A plane circled overhead trailing a banner reading: “Holder: End Rx cannabis war.”

I really get them confused sometimes. John Yoo must be laughing his ass off.