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During her confirmation hearings, Elena Kagan describes her vision of the jurisprudence as “Law All the Way Down.”

Kagan: Senator Kyl, I think it’s law all the way down. It’s — when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is — and this is true of constitutional law, it’s true of statutory law — the question is what the law requires. Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent — how they apply to a case. But it’s law all the way down, regardless.

I am pretty sure she is using a derivative of the famous “Turtles all the way down” infinite regression, as described in Stephen Hawking’s A Brief History of Time.

From Wikipedia:

A well-known scientist (some say it was Bertrand Russell) once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the center of a vast collection of stars called our galaxy. At the end of the lecture, a little old lady at the back of the room got up and said: “What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise.” The scientist gave a superior smile before replying, “What is the tortoise standing on?” “You’re very clever, young man, very clever”, said the old lady. “But it’s turtles all the way down!”

So it is law all the way down. Funny how we accept that cliche to understand the law, but we laugh at that cliche when it describes the cosmos. I suppose the big difference is that through empirical research, we can confirm that the earth orbits around the sun. However, the law is not reducible to such precise measurements.

Turtle’s all the way down.

From Gizmodo:

Poor old Claire Rowlands felt “angry, disgusted and upset” after stumbling across a photo of her three-year-old kid Louis on Google’s Street View tool—thanks to her child’s bottom being served up to (possibly depraved) people on the internet.

Fortunately, Google pixelated–but did not take down–this image.

Gizmodo poses an interesting question:

Google has now pixellated the bottom after seeing Claire’s angry face, but it still makes us wonder… is a grainy photo on the internet more or less safe than having your child running about in full public view without any clothes on?

I addressed this question in Omniveillance. Is there a difference between showing something to a small group of people–a group you can ascertain–and recording that act so that will be disseminated throughout the world.  I think that there is a difference. And what if a person does not consent to that recording? Even bigger difference.

While a person is comfortable doing something in front of a tiny fraction of the public, they may not be comfortable doing so in front of the entire Internet. People do not suspect that they are being monitored. That is the lure and danger of omniveillance-like technologies like Street View. This pervasive recording, when people do not even know they are being recorded, brings a new privacy rights dynamic to the fore.

As I wrote:

Third, there is a difference between volunteering to be seen in public and volunteering to be recorded in public.384 As Justice Carter observed in Gill, there is a distinction between what is viewable in public and what is viewable by reproduction, as what the photographed couple chose to do “in view of a tiny fraction of the public, does not mean that they consented to observation by the millions or readers of the defendant’s magazine.”385 A “person does not automatically make public everything he does in a public place.”386 It is not enough to engage in any conduct and assume some risk. Rather, in order to qualify as assumption of the risk for negligence under the Restatement of Torts,387 the plaintiff must assume the particular risk at issue.388 In the case of omniveillance, when a person simply goes outside, they are assuming the risk that someone will see them. However, unaware that a secret surveillance apparatus is lurking, such a person does not assume that particular risk of being recorded.

According to the Restatement (Second) of Torts, assumption of risk specifically requires a knowledge element that necessitates that the plaintiff “must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable.”389 This standard thus does not apply in the context of omniveillance.

Although a celebrity walking down Rodeo Drive in Beverly Hills followed by a throng of paparazzi can be said to have assumed the risk of being recorded, the same cannot be said when an average person is surreptitiously photographed by an unmarked vehicle or a hidden camera on a rooftop. Ubiquitous and omnipresent surveillance essentially prevents people from avoiding this spotlight. While it may be possible to escape traditional news media, and give a simple “no comment” response to an inquisitive reporter, when a person is being recorded without their knowledge, an abstention from the media becomes an impossible feat. And, contrary to Andy Warhol’s time, when finding an old story involved digging through a dusty library or scanning through microfiche, the fame that omniveillance creates will last much longer than fifteen minutes. Rather, these images are stored in perpetuity on the Internet for anyone to find.

In the case of omniveillance, the people who are photographed did little more than walk outside or open their curtains. They are not involved in a newsworthy event that they voluntarily or involuntarily became a part of. In addition, there is no easy way to determine if one is even photographed, as there are no warnings displayed during the recording. Under these circumstances, it is difficult to interact in society without a reasonable apprehension that omniveillance will capture your image for eternity. Because people are not able to avoid this recording, it is wrong to treat

them in the same vein as people who are thrust into the limelight because of something that happened to them.

Strictly applying the Restatement’s approach, the only way to avoid assuming the risk is to lock your door, shut your curtains, and live a concealed life within your own property.390 In the context of omniveillance, society is presented with a Hobson’s choice. People can either live a hermetic life beyond the eye of omniveillance, or live a life in public and have no privacy at all. Recognizing the value of privacy and how it promotes free speech and expression,391 this outcome is quite undesirable, and should not be promoted. Therefore, because most of the people who are photographed by omniveillance cannot assume the risk, their notoriety is not voluntary, and the third prong of the newsworthiness exception to the right to your digital identity will not be met.

My most recent article, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, was just published in the George Mason University Civil Rights Law Journal. Here is the abstract:

Lemon is a curious fruit. The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong of the Lemon Test, which queries whether a statute has a “secular purpose.” While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means.

Before piercing the citric skin of the purpose prong of the Lemon test, I consider intentionalism and purposivism as jurisprudential schools of thought. What is the purpose behind a law? Does a law even have a purpose? Should purpose even matter in the Lemon test? I argue that the purpose prong forces Judges to rely on unreliable extrinsic sources, like legislative history.

By tracing the evolving nature of the courts’ reliance on legislative history, and applying a commonly used evidentiary principle this article advances a novel theory of legislative analysis and argues that older legislative history is more reliable than modern legislative history, and applies this dynamic to originalism and interpreting founding era documents.

Forging a novel research trail, this article chronicles every case in which the Supreme Court has struck down a statute for violating the purpose prong, and dissects the methodology the Court used to divine purpose. Based on this inquiry, I conclude that the Supreme Court has not taken a principled approach to interpreting these sources, and as a result, the purpose prong consistently yields inconsistent results, and allows savvy politicians to manipulate the record to avoid Establishment Clause challenges.

For these reasons, I propose two modest proposals to the purpose prong. First, I recommend that judges follow the Lemon test, and actually focus on the purpose of the statute in question, rather than some metaphysical and largely unknowable purpose of the legislature. Second, I seek to replace the “objective observer” standard announced in McCreary with an original public meaning analysis. These two suggestions will allow courts to engage in a more robust establishment clause jurisprudence, and further the purpose of the Lemon test in rooting out excessive entanglement of religion in government, and keeping the wall between church and state high, impregnable, and resolute. Much like the proverbial wolf who comes not in sheep’s clothing, but in wolf’s clothes, this lemon comes as a lemon.

Interesting article on SSRN titled The Economic Impacts of Eminent Domain:

This paper evaluates prominent theories on the consequences of eminent domain. We exploit random assignment of appellate judges to three-judge panels and the fact that religious affiliation and public education of judges predict pro-plaintiff takings decisions to show a causal relationship between takings precedents and subsequent economic outcomes. Consistent with eminent domain encouraging development as property owners anticipate higher compensation, property prices rise in metro regions but fall in non-metro regions, where condemnation is less frequent. Eminent domain also spurs economic growth but exacerbates inequality as pro-defendant takings decisions increase local GDP, individual wages, and employment, but not for minorities.

H/T Legal Theory Blog

From USA Today:

This week, writes Budget Travel, “New York state senators vote on a bill that would make it illegal for any homeowner or renter to sublet for less than a month. The new law would be a blanket ban on short-term rentals no matter how ethical the renter is. (It’s always been illegal to violate co-op leases and condominium bylaws.)”

As I noted back in 2008, the practice of renting New York City apartments for short-term stays was already controversial, in part because some landlords were scamming potential guests with substandard or even nonexistent digs.

So rather than staying at pricey New York hotels, tourists rent an apartment for a short period of time, likely at a rate cheaper than a hotel would charge. But New York will not let this happen.

NYC & Company, the city’s “official tourism arm” (I’m not quite sure what that means, other than the fact that they are quite good at rent-seeking) said of renting apartments: “This isn’t a business practice we support, and we strongly discourage people. It’s a real case of buyer beware.”

Unsurprisingly, private companies provide several protections to protect against fraud.

On the plus side, “sites like AirBnB generally offer security measures, such as holding your payment in escrow until you and the renter both meet in person and agree you’re a good match. The sites also let you ask a host questions eBay-style before you book,” says Budget Travel.

I guess that doesn’t matter. I suppose tourists will now have to stay in expensive hotels in New York City. It’s not like there are other, cheaper cities to visit. Wait? There are? Drats.