Sep 1, 2014

Dubious Facts in Supreme Court Amicus Briefs

One of my longest standing gripes has been briefs submitted to the Supreme Court that offer facts nowhere to be found in the record. These are facts that weren’t accepted by the lower court, contested by opposing counsel, or even verified or vetted. At times, these facts were created for the purpose of litigation! Even worse, is when the Justices cite these dubious facts, as if they’re gospel. Enough already!

Adam Liptak in the Times shines a light of this quandary, with a focus on another excellent article by Allison Orr Larsen, which I discussed here.

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

Adam also highlights some recent discussions from the Justices over the value, or lack thereof, of these factual briefs:

Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

The article also highlights some of the more egregious citations:

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

Stick to the facts!

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Aug 31, 2014

Unprecedented On Sale At Amazon for $8.12

My book, which came out this time last year, is now on a steep discount for Amazon at the low, low price of $8.12. That’s a 71% discount off the cover price! If you haven’t already, consider buying a copy.

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Aug 31, 2014

President Johnson Ordered Justice Fortas To Sabotage His Daughter’s Relationship With George Hamilton

Villanova LawProf Tuan Samahon has been waged in a lengthy FOIA court battle to obtain records concerning, among other things, the relationship between President Johnson and his crony Justice Abe Fortas. The Philadelphia Inquirer published a story focusing on one of the more bizarre allegations in the paper: that LBJ ordered Fortas, along with J. Edgar Hoover, to dig up gossip, and try to break up the relationship Johnson’s daughter was having with actor George Hamilton!

For a few months in 1966, the budding romance between film star George Hamilton and Lynda Bird Johnson, daughter of the 36th president, was the talk of Washington. …

But a previously confidential FBI file – which a Philadelphia judge last week outlined in an opinion and ordered to be released – shows for the first time how far Johnson went to protect his daughter and his presidency.

The file indicates Johnson enlisted Supreme Court Justice Abe Fortas and J. Edgar Hoover’s FBI to investigate every rumor they could find about Hamilton, including claims that he was gay and a draft-dodger, in a bid to dig up dirt on the actor.

In his ruling, U.S. District Judge Eduardo Robreno called it not only an improper probe but a “potentially illegal use of executive power.”

The documents were the focus of a four-year court battle by a Villanova Law School professor, Tuan Samahon, and his students. But they also offer a window into a presidential administration and an FBI that apparently thought little of violating the privacy of American citizens – an accusation that has resonated for modern presidential administrations.

According to Robreno, who reviewed the controversial file, the documents ended up reflecting most poorly on the FBI itself.

“This case is about the ability of the federal government to pry into the private lives of U.S. citizens with virtual impunity,” he wrote in his opinion. “The file can be read as an effort by the FBI to uncover embarrassing details about a private citizen as a personal favor to the president.”

The article discusses how Samahon pursued these documents:

The FBI file burnishes a long-established record of the excesses of Hoover’s agency and Johnson’s willingness to use it to investigate perceived threats. But that wasn’t what Samahon, who teaches courses on constitutional law and federal courts, initially went looking for.

He wanted to know what role the FBI may have played in the 1969 resignation of Fortas from the highest court after only four years. Fortas, a Johnson appointee to the court, had been the president’s former attorney and longtime confidant.

Samahon filed a Freedom of Information Act request in 2010 to see a memo that he hoped would give him material for a book on Fortas. At the time, he believed it could indicate the FBI used knowledge of some illicit relationship Fortas had with a man to pressure him into disclosing confidential information about a Supreme Court case.

The Department of Justice released the memo but redacted a single name, saying it could reveal embarrassing details about a private citizen.

Samahon rejected the argument, saying there was no legal reason to keep the name confidential, but the FBI didn’t budge. So Samahon put his students to work, and in 2012 sued for the documents’ release, as well as for the release of the file containing the memo. Samahon said 19 students and Beth Lyon, another Villanova professor, devoted many hours to the case over two years.

The memo Samahon wanted was a two-page report by Cartha DeLoach, deputy director of the FBI and Hoover’s right-hand man.

DeLoach, then the third-highest-ranking official in the FBI, had investigated some of the nation’s most notorious crimes, including the assassinations of President John F. Kennedy and the Rev. Dr. Martin Luther King Jr. He was a Hoover loyalist with close ties to Johnson, and many believed he regularly leaked information to the White House about the most salacious FBI investigations.

Here are the specific allegations concerning Fortas, who by 1966 was already on the Court.

As the romance blossomed between Hamilton and the president’s daughter in early 1966, DeLoach and Fortas were given the uncommon task of sabotaging the relationship. The president, DeLoach wrote in his memoir, also wanted “a full rundown” on Hamilton.

“As far as the president was concerned, Fortas’ seat on the Supreme Court didn’t preclude him from doing a little moonlighting for the president,” DeLoach wrote.

DeLoach and Fortas had a laugh over it, according to DeLoach, then began what DeLoach called a “discreet background check,” reviewing the actor’s family, friends, credit history, draft deferment, and more.

DeLoach became anxious as they failed to turn up anything damaging.

“Every few days I would hustle over to Abe’s office in the Supreme Court building,” he wrote in his 1995 memoir, Hoover’s FBI: The Inside Story by Hoover’s Trusted Lieutenant. “He would sweep in, his robes fluttering, and the two of us would pore over the gossip columns and try to think of ways to break up a young couple in love. . . . Each day we expected the president to call and chew us out.”

When it was clear there was no more to be done, Fortas called to thank DeLoach for his help. DeLoach preserved the conversation in a memo to his boss.

“Justice Fortas called at 10:30 this morning to express appreciation for the information the Director had me furnish him concerning the George Hamilton matter,” the memo states. “Justice Fortas advised he agreed with the Director that no further action need be taken at this time.”

The article also addresses allegations that Fortas frequented a male prostitute.

In fact, Fortas later confronted claims that he had a dalliance with a male prostitute. In 1967, DeLoach informed Fortas the prostitute had alleged having a sexual relationship with the justice. Fortas, according to the FBI memo on the incident, denied the allegation and thanked DeLoach for informing him.

I have heard some other rumors about this allegation.

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Aug 31, 2014

NY Times Editorializes In Favor of En Banc Review in Halbig

This just may be the biggest en banc decision I can recall. Halbig is it? Really Big! (I’ve been saving that pun for a really long time).

The New York Times Editorial Board has taken a position on whether the D.C. Circuit should grant review in Halbig. Has the Times ever editorialized concerning an en banc call before?

Now the fight has shifted to an arcanelegaldebate over whether the full appeals court in the District of Columbia should rehear the case or allow it to be appealed directly to the Supreme Court.

The law’s defenders would prefer a rehearing. They are confident that the full court, with a majority of judges appointed by Democratic presidents, would overturn the panel’s ruling. The opponents want to fast-track the case to the Supreme Court, hoping that the five conservative justices will uphold the ruling. They argue that there should be no rehearing because the case is not of “exceptional importance,” one factor the appeals court considers in deciding whether to order a rehearing.

The stakes here are high, since the Supreme Court is almost certain to step in when different federal appeals courts reach opposing results on the same question. If the full D.C. appeals court were to overturn the panel’s ruling, there would be less reason for the Supreme Court to get involved. But the legal maneuvering should not obscure the fact that six of the eight federal judges who have considered the challengers’ subsidy claim have seen right through it.

I’ve explained that this perception–that Obama nominees will rule for Obama–is a “dangerous mindset.” The politicization of the courts may seem advantageous in the short run, but I fear what it means in the long run. If we learned any lesson from NFIB, it’s that courts do not react well to pressure from the media–or at least they don’t react the way we think they will.

Let’s assume that en banc review is granted. Then for the next 6 months, there will be pressure on the D.C. Circuit–in particular the newly-appointed judges–to uphold the law. Do you really think this is the type of pressure the judges would want to go through? Especially when the Court would likely grant cert in any event? The D.C. Circuit, keeping with their practice of seldom granting en banc review, may be counseled by letting this one go, and allowing the Court to deal with it.

As a reminder, the SG’s Brief in opposition to cert is due on September 3.

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Aug 29, 2014

Kelo’s Comprehensive Plan Does Not Include “We’ll Figure It Out”

One of the greatest frauds (and there are many) of Kelo is the farce that the requirement of a “comprehensive plan” prevents abuse. This shibboleth is absurd, as courts have found the comprehensive plans need not be comprehensive, nor plans at all. Taken seriously, Kelo will permit the exercise of eminent domain whenever there is any idea written down about how property may be used to improve the tax base. This usually gives any non-stupid staffer the ability to concoct some hair-brain scheme to take someone’s property. But in the past, there had to be something on paper.

And then there’s New Jersey. As you may have read, Atlantic City is in dire conditions. Several casinos just filed for bankruptcy and are closing down, including The Revel. Earlier, to help those failing casinos, the City had decided to take the home of Charlie Birnbaum, a 67-year-old piano tuner, whose parents were Holocaust survivors. Now, that the Casino has gone bankrupt, the plans have totally fallen apart. So does this stop the government from taking the property? Of course not. With no plans, but a hope and a dream, the city is proceeding with the eminent domain proceedings.

The lawyer for the Casino Authority explains that there will be a comprehensive plan one day, which is good enough for taking the property now.

Stuart M. Lederman, the lawyer for the casino authority, said that the details of the shops and restaurants to be erected can await a developer’s conceptions.

Unbelievable. The best laid schemes of mice and men. But with Steinbeck, there was actually a plan!

This comprehensive plan is neither comprehensive, nor a plan, nor even an actual idea. It’s a work of fiction. An IOU that one day there will be a comprehensive plan. If this survives Kelo, then anything will survive Kelo. A promise to act is not cannot possibly suffice. But again, this is New Jersey.

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Aug 29, 2014

Apparently, the President also doesn’t have a Strategy on Immigration Either

Yesterday, after the President admitted that he didn’t have a strategy with respect to ISIS, I tweeted, somewhat facetiously, “Is it possible the President also doesn’t have a strategy on immigration?” Since his June press conference in the Rose Garden, where the President announced that he would go it alone on immigration, countless rumors have trickled throughout D.C. The most outlandish rumors suggested the President would extend DACA to the 5 million family members of the Dreamers. Rep. Gutierrez insisted the President would do this! We were told, at various points, that this news would come around Labor Day. But nothing was confirmed by the Administration. I wondered, much like the uncertainty over how to deal with ISIS, maybe the President also doesn’t have a strategy on immigration?

Now, I find that I was somewhat right. The Times reports that the President will ditch his plans to act in September, and will now wait (shocker) for after the mid-term elections to decide.

Under pressure from nervous Democratic Senate candidates in tight races, President Obama is rethinking the timing of his pledge to act on his own to reshape the nation’s immigration system by summer’s end, and could instead delay some or all of his most controversial proposals until after the midterm elections in November, according to people familiar with White House deliberations.

The president vowed in late June to act unilaterally out of frustration with what he termed Republican obstruction, and said he would announce a decision soon after receiving recommendations from top aides at the end of the summer.

But now Mr. Obama and his aides appear to be backing away from a firm commitment to that timing. In remarks to reporters on Thursday, Mr. Obama hinted at the possibility of a delay.

In a terrible choice of words, Josh Earnest (an inapt name for a Press Secretary if there ever was one), says that the President wont put “the cart before the horse.”

Josh Earnest, the White House press secretary, said Friday that the president was “as determined as ever to take that kind of action on his own.” But he and other White House officials declined to repeat the president’s earlier pledge of an announcement by the end of this summer, or to say whether the president was considering delaying some of his decisions until later this year.

“That’s putting the cart before the horse,” Mr. Earnest said. “Those who are speculating about how those recommendations might be implemented are a little ahead of themselves.”

Why is this word choice tragic? The President’s “I have on strategy” blunder yesterday was framed in almost identical terms–which makes me think this was a vetted talking point. Or not.

“I don’t want to put the cart before the horse,” Obama told reporters during a White House news briefing. “We don’t have a strategy yet.”

This is very significant,as we were assured, all summer, that we would get unilateral executive action soon! I imagine immigration rights groups are now getting very, very nervous. They may not get what they were hoping for.

A person familiar with the White House deliberations disputed part of a report on Friday in The Los Angeles Times that suggested Mr. Obama might announce tighter enforcement measurements in the coming days and then delay until after the election a proposal to shield from deportation millions of illegal immigrants.

“The notion that we would divide up enforcement and the other recommendations is highly unlikely,” the person said. But the person declined to say whether an announcement might be delayed or divided up in another way.

The debate within the White House is fierce:

Inside the White House, the timing of an announcement has become the subject of a fierce debate.

Some of Mr. Obama’s advisers are urging him to postpone it, fearful of the political ramifications of a sweeping action to protect millions of illegal immigrants from deportation and provide many of them official work papers. Such a move by the president, some senior officials worry, could set off a pitched fight with Republicans and dash hopes for Democrats running in conservative states.

Democratic control of the Senate hinges on the outcomes of about a half-dozen close races in states where Mr. Obama is not popular, and strategists fear that an immigration announcement could complicate Democratic efforts to prevail in those states, including several races in states that Mr. Obama lost in both 2008 and 2012.

Wait a minute? I thought that immigration reform was a sure winner! How could it be that it would hurt electoral prospects. Maybe this issue is more divisive than we were led to believe.

Others in the White House almost want the President to dare the Republicans, and hope they drag him into an impeachment battle.

But others inside the White House are pushing the president to stick to his promised schedule, regardless of the immediate political consequences. They argue that Republicans will criticize the president and attack Democratic candidates even if Mr. Obama delays parts of his announcement until after the election.

And some argue that the Republican reaction — which could include calls for impeachment of the president or a move to shut down the government — could benefit Democrats politically by creating a backlash against Republicans among voters.

In any event, the President continues to cite congressional intransigence as a rational to act alone:

“Some of these things do affect timelines, and we’re just going to be working through as systematically as possible in order to get this done,” Mr. Obama said. “But have no doubt, in the absence of congressional action, I’m going to do what I can to make sure the system works better.”

But working around this gridlock (also known as bypassing Congress) has a cost:

At the same time, the president’s repeated efforts to go around a gridlocked Congress have already prompted a Republican lawsuit alleging that he has abused the executive powers of his office. A decision to protect millions of illegal immigrants from deportation would provide new ammunition to critics who accuse Mr. Obama of building an “imperial presidency” with little regard to the nation’s laws. …

“If he acts unilaterally right now and goes in and grants five million people status in the country, I think he blows up the debate, destroys the debate,” said Senator Rand Paul, a Kentucky Republican. “He is going to ignite a furor in the country if he thinks he can do that by executive fiat.”

A broader move could risk an impeachment conflagration that could consume the remainder of his presidency, and a clash over the balance of powers between the executive and the legislative branches of government could reverberate for decades.

Today a colleague presented a paper on DACA, and I had a lengthy chat afterwards about immigration policy. I recognize I am in a small minority of people who support the DREAM Act but oppose DACA. I appreciate the policy objectives of providing some status to the DREAMERS, but not if it is done in an unconstitutional manner.

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Aug 29, 2014

The “Dangerous Mindset” about the D.C. Circuit in Halbig

Greg Stohr of Bloomberg News interviewed me about the D.C. Circuit’s pending decision concerning rehearing en banc in Halbig. I noted that the mindset of Harry Reid, Emily Bazelon, and others, that the court will vacate the panel decision just because there are more Obama appointees on the court presents a “dangerous mindset.”

Senate Majority Leader Harry Reid, a Nevada Democrat, last month fueled the perception that the Democratic appointees would tip the balance. Asked whether the D.C. Circuit panel’s decision vindicated his decision to change the voting rules, he replied, “if you look at simple math, it sure does.”

Those comments, and the assumption that the D.C. Circuit will divide along partisan lines to uphold the IRS rule, have drawn fire from critics of the health-care law.

“It’s a really dangerous mindset,” said Josh Blackman, a professor at South Texas College of Law in Houston who wrote a book on the first health-care case. He called the D.C. Circuit a “very professional court” with a tradition of granting full-court review sparingly.

A decision by the full appeals court to reverse the panel would eliminate the circuit split, making a Supreme Court grant of review less of a necessity. Although the justices could still get involved, they might be reluctant to outlaw subsidies being used by millions of Americans.

Two years ago, four justices said they would have thrown out the entire law. Chief Justice John Roberts joined the court’s four Democratic appointees in voting to largely uphold the measure.

The S.G. Brief in Opposition to Cert is due on Wednesday, September 3. Stay tuned.

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Aug 28, 2014

Youngstown Sheet & Tube v. Sawyer. In Meme Form.




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Aug 27, 2014

Avoiding North Carolina v. South Carolina in the Supreme Court’s Original Jurisdiction

The Times had a fascinating piece on trying to establish the boundary between North Carolina and South Carolina that touches on so many things I find interesting–colonial history, property lines, and the original jurisdiction of the Supreme Court! In short, to avoid the bruising litigation fees of litigating a boundary dispute to the Supreme Court the Carolinas decided to resolve the disputes themselves, based on surveys ordered from the time of King George III. So much to love about this!

First, the article offers a fascinating history of why the border is so disputed–lazy colonial surveyors:

When the two Carolinas were created as separate British colonies, they were supposed to be split by two simple straight lines: one running northwest from the Atlantic Coast to the 35th Parallel, the other following the 35th due west to the “South Seas.” But making the territory resemble the map wasn’t so easy.

The original 1735 survey party, for example, had members who sometimes didn’t show up, sometimes didn’t get paid and often gave up while trudging through the ghastly swamps and wilderness they encountered on their way up from the coast. That may explain why they failed to reach their target, the 35th Parallel, after two years of effort: Instead, they drove a stake into the ground 12 miles too far to the south, and went home.

King George III (yes that King George) tried to fix it, but it also didn’t work.

Another party, sent out in 1764 to continue the survey, headed west from that same erroneous stake, despite explicit orders from King George III to verify that the first surveyors had indeed reached the 35th Parallel. By the time they detected their error, 64 miles later, they had shaved 422,000 acres off what was supposed to be South Carolina. Subsequent efforts to compensate South Carolina by continuing the westward line slightly north of the 35th Parallel were similarly jinxed, this time by a compass-deflecting magnetic anomaly west of present-day Charlotte, N.C., that skewed the boundary slightly northwest, carving thousands of acres out of what was supposed to be North Carolina.

Second, the article explores some other costly state-v-state litigation, including Georgia v. Tennessee (which didn’t make it to the Court), Georgia v. South Carolina (boundary along Savannah River), and New Jersey v. New York (dispute over Ellis Island).

Georgia and Tennessee, to cite the loudest current example, are trading insults and ultimatums over a strip of land barely a mile wide. In 1990 Georgia marched South Carolina to the Supreme Court over a handful of islands in the Savannah River (South Carolina prevailed). New Jersey did the same to New York a few years later over landfill around Ellis Island. When New Jersey won, Rudolph W. Giuliani, then the mayor of New York City, quipped, “It must have been a fix.” …

The default response these days to situations like this is usually conflict, which can be costly. The legal bill for South Carolina’s defense against Georgia, for example, topped $10 million, and so traumatized South Carolina officials that they looked for a peaceful way to find the missing border with North Carolina.

To avoid that problem, North and South Carolina decided to work it out amicably.

The Carolinas have shown that cooperation is cheaper than litigation. Sidney C. Miller, the boundary commission’s co-chairman from South Carolina, said 20 years of boundary resurveying had cost his state just a fraction of the bills from the 1990 Georgia lawsuit, not to mention lower levels of stress and vitriol.

And they had to use sophisticated technology to match up the metes and bounds of surveys from days of yesteryear.

In 1993 the two states’ mapping agencies pledged to cooperate, harnessing geospatial technology to old-fashioned detective work. In one border segment near Charlotte, they unearthed colonial-era property maps that had used the boundary trees as tract corners and overlaid Geographic Information System data — mapping technology accurate within inches — to calculate where the trees once stood.

In another segment, researchers found a stone boundary monument that had been set as part of a 1928 resurvey, except it now stood near a tee on a golf course. Officials at the course had moved it years before so duffers could brag about their two-state tee shot. Using the original 1928 maps, advanced mathematics and some informed guesswork, the joint survey teams navigated to the exact spot where the monument had been uprooted, and even found its broken-off base.

By 2013, the entire 334-mile boundary had been relocated and re-marked.


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Aug 27, 2014

Prop1 Class 4: The Capture Rule: Oil and Gas, Acquisition by Creation

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here. The livechat is here.

Oil & Gas

And, “I drink your milkshake.”

Here are some pics illustrating slant drilling. One of which may be from a cartoon.



You can learn more about the Manziel family and oil here.


International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.


The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.


The author of the dissent, Justice Brandeis, was a big deal.


Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

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Aug 27, 2014

Prop2 Class 4 – Marketable Title

Today we will continue our discussion of the contract of sales with a focus on duty to disclose defects and the merger doctrine. The lecture notes are here. The livechat is here.

Here is the Texas form listing all the required disclosures.

The New York Times and Atlas Obscura have good articles about the Haunted House.

The Ghost of Nyack | Atlas Obscura

The Times writes:

The phones have been ringing at real-estate offices in Rockland County. A patient in a psychiatric hospital called. So did a para-psychologist from Florida. And so did the Amazing Kreskin, all the way from his hotel room in Atlantic City.

That turreted turn-of-the-century Victorian house in Nyack is back on the market – the one that the owner says has not one, not two, but three ghosts. The one that was the subject of a court ruling last week.

There was nothing creepy about Justice Edward H. Lehner’s decision in State Supreme Court in Manhattan. He found that a would-be buyer, Jeffrey M. Stambovsky, could not back out of a $650,000 contract on the three-story clapboard house without losing his $32,500 down payment on it.

Mr. Stambovsky, who acknowledges that the contract expired after he skipped a scheduled closing last fall, had argued that no one warned him about any preternatural residents who, presumably, would not comply with ordinary eviction orders.

As for whether he will see the ghosts in Nyack – in 22 years, the owner, Helen V. Ackley, has seen only one.

”He was sitting in midair, watching me paint the ceiling in the living room, rocking and back forth,” she said. ”I was on an 8-foot stepladder. I asked if he approved of what we were doing to the house, if the colors were to his liking. He smiled and he nodded his head.”

Mrs. Ackley said one of the other ghosts would waltz into her daughter’s bedroom. ”We don’t know whether or not she was the one who woke the children up by shaking the bed,” she said.

Ghost No. 3 was a Navy lieutenant during the American Revolution. ”My son saw him eyeball to eyeball outside the basement door,” Mrs. Ackley said.

Atlas Obscura writes:

During the 1960s, the 7,000 residents of the tiny village knew that the 5,000 square foot house was haunted, but nobody bothered to tell the Ackley couple before they decided to move in.

Helen and George Ackley, who lived in the home for more than 20 years, reported that they had seen a ghost in the house on at least one occasion and that they would be awoken every morning by a shaking bed, but otherwise lived in peace with whatever spirits resided in their home. When they decided to move and sold the house in 1990, they didn’t bother to tell the new buyers about the ghost problem.

With $32,500 in escrow, Jeffrey and Patrice Stambovsky backed out of the contract when they learned that the house was haunted. When the Ackleys refused to refund the deposit, the Stambovskys sued, leading to what would come to be known as the “Ghostbusters” ruling. The New York Appellate court ruled that, because a routine home inspection would never uncover it, sellers must disclose that a house is haunted to potential buyers.

Here is a Google Map of the haunted house:

View Larger Map

There was at least one Texan who wanted a lease voided because the house was haunted. In some cases, a haunted house may actually increase the property value. Recently the Pennslyvania Supreme Court found that there was no duty for sellers to disclose there was a murder-suicide in the house.

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Aug 26, 2014

President Bypassing Treaty Clause For Climate Change Accord?

The Times has a story suggesting that the President will enact sweeping changes to American climate change policy through a United Nations framework.

The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.

But it won’t be a treaty, so it won’t require 2/3 vote in the Senate. So what exactly is it? I’ve read the article, and I have no idea. Here’s how the Times introduces it:

To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.

Perhaps my knowledge of international law is a bit rusty, but what the hell does this mean?  Are “politically binding” and “name and shame” terms of art in modern international law?

The article elaborates, and says that this new agreement would expand upon a 1992 treaty:

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

How would Congress be “legally required to enact” any policies? Or is this saying the President would enact these policies himself? It seems the latter.

In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions. That regulation, which would not be not final until next year, already faces legal challenges, including a lawsuit filed on behalf of a dozen states.

And what happens if a court finds the President lacks such powers? Or, per Missouri v. Holland, does the treaty enhance the President’s powers?

What is clear, is that, once again, the supporters of this law–apparently including the President–are citing the gridlocked Senate’s unwillingness to support this agenda as a justification for this creativity.

“If you want a deal that includes all the major emitters, including the U.S., you cannot realistically pursue a legally binding treaty at this time,” said Paul Bledsoe, a top climate change official in the Clinton administration who works closely with the Obama White House on international climate change policy.

Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming. …

“There’s some legal and political magic to this,” said Jake Schmidt, an expert in global climate negotiations with the Natural Resources Defense Council, an advocacy group. “They’re trying to move this as far as possible without having to reach the 67-vote threshold” in the Senate.

This is asinine, because unlike the 60-vote limit imposed by the filibuster, the 2/3 requirement comes straight from the Constitution. This is not gridlock! Seeking a super-majority to ratify a treaty is a limit imposed by our Framers to ensure that the President did not get us into foolish treaties that lack bipartisan support. Of course, such trifles are of no moment for the President, who needs to correct this gridlock.

Update: Jack Goldsmith weighs in on this non-story:

I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.” …

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)


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Aug 26, 2014

Posner’s Greatest Hits in SSM Oral Arguments – “Pathetic,” “Ridiculous,” and “Absurd.”

Early reports (here and here) suggest that Judge Posner was at his finest (worst?) today with his vitriolic questions to the Attorneys General of Wisconsin and Indiana, who were attempting to defend (unsuccessfully it seems) their bans on same-sex marriage. Here are the highlights:

  • “It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.
  • At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.
  • “What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”
  • A three-judge federal appeals panel on Tuesday closely questioned Wisconsin and Indiana’s bans on same-sex marriage, with one judge calling parts of the states’ arguments “absurd” and “ridiculous.”
  • “These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law. Who is being helped?”
  • Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.
  • But Posner expressed skepticism of the idea that the states were trying to promote procreation. “You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”
  • Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.
  • “These children would be better off if their parents could marry, no? It’s obvious,” Posner said.
  • “Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”
  • At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”
  • “How can tradition be the reason?” he asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.
  • When Samuelson offered “deference to the democratic process [as] another purpose,” Posner wanted more, telling the frustrated lawyer, “You have to have something better.”

I don’t think the lawyers could do any better.

Putting aside the merits of the case, Posner is a bully from the bench. I’ve followed all of the other arguments in these cases, and the judges, even those who disagree with the lawyers, managed to be courteous and respectful.

Update: Ian Milhiser at ThinkProgress transcribes a full exchange with Posner:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?


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Aug 26, 2014

PACER Offers Terrible Explanation Why They Are Removing A Decade of Court Information

Following up from my post this morning, where we learned unceremoniously that PACER would be dumping a decade of information off of PACER, the WSJ has obtained a statement explaining this idiotic move.

On August 11, a change was made to the PACER architecture in preparation for the implementation of the Next Generation of the Judiciary’s Case Management/Electronic Case Files System. NextGen replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen.

As a result of these architectural changes, the locally developed legacy case management systems in four courts of appeals and one bankruptcy court are now incompatible with PACER, and therefore the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.

Seriously? Obtained directly, by going to the court in person? What kind of horrible rationale is that.

And, since these documents can no longer be purchased why wouldn’t they offer these documents to be archived? My friend Mike Carver is trying to obtain the archived documents.

But that means it is much harder for the public to access historical records — and the lack of forewarning left some legal and technical experts reeling. Brian Carver, an assistant professor at University of California at Berkeley School of Information, says he was frustrated and disappointed by the change. Carver is a co-founder of nonprofit group Free Law Project, which recently partnered with Princeton’s Center for Information Technology Policy to maintain the RECAP platform — a crowd-sourced project which hosts free archives of documents others have obtained through the paid PACER system.Using a browser extension, RECAP users can see when documents are already available for free in their archive which currently stands at roughly 3 million court documents — and automatically upload documents that they pay for to that public archive.

Carver says their group would be happy to host the files publicly, and are reaching out the courts to see if that is possible. But he was still shocked by the lack of advance warning. “If we had known about it in advance maybe we could have done something to target these documents and archive them publicly,” he says. “It was really an announcement of an accomplished feat — we weren’t told until after this deed was already done.”

 I hope PACER doesn’t let this data go down the memory hole.

Update:  Todd Ruger writes at Legal Times that you can obtain the records by emailing the court! For the low cost of $30 per case!

Want to access a case filed in the Second Circuit before Jan. 1, 2010? You now must send an email or written request to the court clerks office to obtain the records. The cost: $30 for the entire file, which will be sent by email. (PACER costs are 10 cents per page. Opinions, however, are free.)

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Aug 26, 2014

Final Version of “The 1st Amendment, 2nd Amendment, and 3D Printed Guns”

The Tennessee Law Review has published the final version of my article, “The 1st Amendment, 2nd Amendment, and 3D Printed Guns.” Here is the abstract:

We are standing at the dawn of the next great industrial revolution. With 3-D printers people can print an infinite number of personalized and customized “things.” However, one manifestation of this bold new technology threatens to cast a specter on innovation: 3D printed guns. This article explores how efforts to regulate, or even ban 3D guns, must satisfy constitutional scrutiny under both the First and Second Amendments.The Second Amendment right to keep and bear arms includes a subsidiary right to acquire arms — what else are you going to keep and bear — which covers both the buyer, and seller in the transaction. Further, the seller has to obtain guns, including newly manufactured firearms. Thus, the Second Amendment supply chain protects a right to make arms. These constitutional guarantees preserve the right to acquire and make firearms, by 3D printer or other means.

Prohibitions on sharing and receiving information about 3D guns, in the form of CAD source code files, violate the First Amendment right to free speech. The fact that information about 3D guns is distributed in electronic format does not shield it from the Bill of Rights. Further, the “hybrid” First and Second Amendment right offers heightened constitutional protections when the government attempts to restrict speech about the right to keep and bear arms.

I concluded by offering a preliminary analysis of several proposals to regulate 3D guns. First, laws that prohibit the manufacturing and possession of 3D guns, without a showing that the weapons are highly dangerous, would likely be unconstitutional. Second, bans on individuals making and possessing 3D guns for personal use would represent an unprecedented expansion of gun control laws, as there are virtually no regulations on homemade firearms. Third, the application of the International Traffic in Arms Regulation (“ITAR”), designed to keep dangerous weapons and munitions out of the hands of foreign nationals is an an ill-equipped, and as applied unconstitutional means to regulate 3D guns.



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Aug 26, 2014

The Second Amendment Right to Acquire Arms

Despite the fact that the Supreme Court has held that we hve a Second Amendment right to *possess* a firearm, the DOJ and most state governments have continued to take the position that there is no right to *acquire* arms. Now, you may ask yourself, how is it possible to possess a gun, when you don’t already have one. And, as transactions go, acquiring arms entails the right of one party to sell/give the gun, and the other party to buy/receive the gun. It takes two to tango. I discuss this at length in my article on 3D-printed guns.

Through unique circumstances, both Dick Heller and Otis McDonald were attempting to register guns they already owned, but were illegal to keep functional under the law. The Supreme Court, in neither case, had the occasion weigh in squarely on whether or not the Second Amendment protects the right to acquire arms. Justice Scalia in Heller did say that Second Amendment should not “cast doubt” on “laws imposing conditions and qualifications on the commercial sale of arms.” You could (as the government has) read that to say that means acquiring arms is outside the scope of the Second Amendment. I read it differently–if the “sale of arms” was not a constitutional right, it could be prohibited altogether under the police power, and not just limited by “conditions and qualifications.” The need to qualify a right dictates the existence of the right in the first place.

In Ezell v. City of Chicago, the 7th Circuit seems to have read this language in a similar fashion. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” The key word is “acquire.”

Recently, a federal court in California reached a similar conclusion. California imposes a 10-day waiting period to buy a gun. However, this same waiting period applies even if a person has already registered guns in the past, or even those who have a concealed carry permit. A federal court struck down this law, as imposing a burden on the Second Amendment right.

Pivotal in the analysis, is the court recognized that the Second Amendment applies not just to guns you already own, but the process of obtaining new guns.

When the 10-day waiting period laws apply, they prohibit every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. One cannot exercise the 24 right to keep and bear arms without actually possessing a firearm. Cf. Andrews v. State, 50 Tenn. 165, 178 (1871) (“The right to keep and bear arms necessarily involves the right to purchase them . . . .”). Also, in some cases, due to additional costs and disruptions to schedules, the 10-day waiting period may cause individuals to forego the opportunity to purchase a firearm, and thereby forego the exercise of their Second Amendment right to keep and bear arms. Therefore, the 10-day waiting period burdens the Second Amendment right to keep and bear arms. 

The court also found that the “no doubts” passage from Heller only finds that certain “qualifications” are constitution, and other “conditions” are not. The 10 day waiting period is not lawful.

In comparison to Nordyke and a 10 plain reading of Heller‟s language, it is not clear to the Court that a 10-day waiting period would qualify as a commercial regulation. Defendant cites no comparable commercial laws that apply to other goods and that require an individual to wait around 10-days before completing a purchase. The Court is not satisfied that Defendant has shown that the 10-day waiting period is one of Heller‟s envisioned conditions and qualifications of a commercial sale.

I think this decision gets it right. The right to possess arms entails a right to acquire arms, which protects both the buyer and the seller. This right can be regulated, but it must be reasonable. Forcing someone who has already gone through background checks, and already has other licensed guns, to wait 10 days, is unreasonable.

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Aug 26, 2014

Down the Memory Hole: PACER Deleted Decade of Court Records

Without any explanation (there surely couldn’t be any), PACER announced, that “as of August 10, 2014″ (two weeks ago), it would be deleting an unknown number of records from various courts:

U.S. Court of Appeals for the 2nd Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the 7th Circuit Cases filed prior to CM/ECF conversion
U.S. Court of Appeals for the 11th Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the Federal Circuit Cases filed prior to March 1, 2012
U.S. Bankruptcy Court for the Central District of California Cases filed prior to May 1, 2001

PACER started rolling out in various courts in 2001 or so, and by 2005 was in virtually all courts. We are talking about the deletion of perhaps a decade worth of data.

Simply stunning, and brazen. That information is lost to the ages, as there will now be now way of extracting it. Does PACER have plans to delete data from other courts, without notice? I’m sure there are countless groups that would be willing to store the data, indefinitely. After all, it is public data about public records. Unbelievable.



Update: On Twitter, A reporter suggests that they didn’t “prioritize backwards compatibility” and there was a “system integration issue.” So down the memory hole they go.

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Aug 25, 2014

Upgrading with Points or Dollars on United

File this post under First World Problems. Often, after buying a fare on United, I will receive an instant option to pay cash to upgrade to Business Class. The cost can be as low as $75, usually somewhere between $100 and $200, and sometimes as high as $700. Sometimes, especially on an early morning or late-night flight, I’ll pay the fee, but usually if it is less than $200. But, if I pass on that instant option, and try to upgrade at a later time, it usually costs more. For example, on a recent ticket I bought to Sacramento, it gave me the instant option to upgrade for $200. A few days later, it was $240.

The other option would be to upgrade with points. For the Sacramento ticket, it cost 15,000 points. What’s better? To spend 15,000 points, or spend $240. I have lots of points to burn, so I used points. But assuming I didn’t. You can buy 1,000 miles for $35. 15,000 miles costs $564. Granted, it is not a direct comparison, but in this case it would probably be better to pay the $240 in cash, rather than burn 15,000 miles, which equates to roughly $564. It may even be possible to buy a one-way ticket for under 15,000 miles, and the cost of that ticket would probably be more than $240.

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Aug 25, 2014

The Onion On The Shooting Cycle

That’s about right:

Echoing at a soft and constant volume across the nation’s collective conscious, the ambient, unending background hum of modern American life reported today that an armed gunman remains at large after opening fire on innocent bystanders. “Community members are advised to shelter in place,” stated the incessant, low-level white noise of death counts and missed warning signs emanating steadily from all directions, which confirmed that a vigil honoring the victims of the shooting will be held Thursday. “There were maybe five, six shots one after the other, and everyone started panicking. The gun was obtained legally. You never think that something like this could happen in your town.” The ceaseless, droning din of day-to-day existence in the United States went on to add, “lockdown, grieving families of the victims, troubled young man, AR-15, mental health system, senseless, took his own life, unsuccessful legislative efforts.”

See The Shooting Cycle.

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Aug 25, 2014

Gridlock and Executive Power on the Cover of National Review

An adaptation of my article, Gridlock and Executive Power, will grace the cover of the September 8 issue of National Review. The article, behind a $.25 paywall, is available now. Here is the introduction of The Gridlock Clause.

Since 2010, when the Democrats lost their majority in the House and their filibuster-proof majority in the Senate, President Obama’s ability to pursue legislative changes has ground to a halt. Headline after headline blares that the “do-nothing Congress” has enacted the fewest laws in decades. But that gridlock hasn’t halted the president’s plans to implement his policies. In fact, he claims it has strengthened his power to act alone — if Congress won’t act, he can, and will.

President Obama routinely cites Congress’s obstinacy to his agenda as a justification for engaging in a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.

There is nothing new about congressional gridlock. It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives.

On the cover, the President is aptly erasing the “Take Care” clause from the Constitution. Indeed.


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