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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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The Chief Justice’s 2012 Year-End Report

December 31st, 2012

The Chief’s year end message about the state of the judiciary is here. His prose is amazing! If this Supreme Court thing doesn’t work out, the Chief should turn to writing fiction (no, his NFIB saving construction doesn’t count!).

Make sure to tip your waitresses. I digress.

The report enters the fray of politics, albeit slightly.

Two hundred years after the War of 1812, our country faces new challenges, including the much publicized “fiscal cliff” and the longer term problem of a truly extravagant and burgeoning national debt. No one seriously doubts that the country’s fiscal ledger has gone awry. The public properly looks to its elected officials to craft a solution. We in the Judiciary stand outside the political arena, but we can continue to do our part to address the financial challenges within our sphere.

Roberts also talks about how little money the courts receive–but doesn’t mention the bounty that is PACER.

Yes, for each citizen’s tax dollar, only two-tenths of one penny go toward funding the entire third branch of government! Those fractions of a penny are what the courts need to keep court facilities open, pay judges and staff, manage the criminal justice system (including pre-trial, defender, and probation services), process civil disputes ranging from complex patent cases to individual discrimination suits, and maintain a national bankruptcy court system. Those fractions of a penny are what Americans pay for a Judiciary that is second to none.

But there is a huge constraint on cutting the budgets of the courts–The Constitution!

Virtually all of the Judiciary’s core functions are constitutionally and statutorily required. Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone. The courts must resolve all criminal and civil cases that fall within their jurisdiction, often under tight time constraints. A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.

The President and Congress totally owe the Chief a solid. After all, this Umpire called the ACA safe at the plate. They should help out here.

I therefore encourage the President and Congress to be especially attentive to the needs of the Judicial Branch and provide the resources necessary for its operations. Those vital resource needs include the appointment of an adequate number of judges to keep current on pending cases. At the close of 2012, twenty-seven of the existing judicial vacancies are designated as presenting judicial emergencies. I urge the Executive and Legislative Branches to act diligently in nominating and confirming highly qualified candidates to fill those vacancies.

And, in conclusion, Constitution.

I am privileged and honored to be in a position to thank all of the judges and court staff throughout the land for their continued hard work and dedication. In a certain sense they share the heritage of those sailors who stood on the decks of Old Ironsides. But they also share a vantage that was not yet within the sailors’ sight. Throughout its history, our Nation has withstood daunting tests and always emerged strong, secure, and optimistic. We can all look forward with confidence, beyond the pitch of dark waters, to more promising horizons. We know from experience that our durable Constitution provides the framework needed for able hands to overcome any obstacle, consistent with the rule of law.

H/T Derek Muller

“Maximize Outputs” and “Minimize Costs” of the Fourth Amendment

December 31st, 2012

Ric Simmons has an interesting piece forthcoming in the Harvard JLPP that considers the costs of the Fourth Amendment, titled Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment.

Here is the abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

In The Constitutionality of Social Cost, also published the Harvard JLPP, I consider the social costs of many of our constitutional rights, including the Fourth Amendment. From the abstract:

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished. Likewise, a violation of a person’s Miranda rights renders certain confessions — even an uncoerced inculpatory confession — inadmissible.

Procedural rights during the criminal trial — including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury — all make the prosecution of culpable defendants significantly harder. The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person — however dangerous — cannot be indefinitely without proper procedures. Liberty’s harm to society takes many forms — not just from the exercise of the right to keep and bear arms.

These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

 

That Dream Where You Are Unprepared On The First Day of School–But In Reverse

December 31st, 2012

Last night I had that dream where I was unprepared for the first day of class, but as the professor, no the student.

It was the first day of the semester and I show up to my Property I class, though we were’t in the law school, we were in my HS Government classroom. I was the teacher. We were supposed to learn Pierson v. Post.

I realized when I walked in that I hadn’t prepared for class. So I start frantically trying to remember the case. I had written an article on it and read it so many times, but was drawing a blank. So I decide the wing it.

I panicked, and started asking some questions about the case but didn’t really know where I was going.

I don’t remember the remainder of the dream.

Obamacare Protects the Second Amendment!?

December 30th, 2012

Apparently the NRA pushed to have a provision inserted into the Affordable Care Act that restricts “the ability of doctors to gather data about their patients’ gun use — a largely overlooked but significant challenge to a movement in American medicine to treat firearms as a matter of public health.”

The provision says that “wellness and prevention” portions of the health-care law “may not require the disclosure or collection of any information” relating to the “presence or storage of a lawfully-possessed firearm or ammunition in the residence or on the property.” Further, the measure says the law cannot be used to “maintain records of individual ownership or possession of a firearm or ammunition.” It adds that the price of health coverage may not be affected by the ownership, possession or use of guns.

 

And it was added “quietly”

The deal to add gun language to the health-care bill was struck so quietly that several top officials in the Obama administration and in Congress had no idea the passages had been added until approached by The Washington Post last week.

A White House official, who spoke only on the condition of anonymity, said the provision was “added into the health-care bill on the Senate floor.” For explanation on what happened, the official added, “I’d send you to the Hill.”

It’s like making sausage. But it’s good enough, it’s smart enough, and dog-gone-it, people like it!

Sen. Al Franken (D-Minn.), who sits on the Senate health committee, said he was aware of the late addition and found it “objectionable.” But, he said, “it’s helpful to remember that we were in the position of having to get 60 votes from 60 senators. And as a result, some things ended up in the bill for reasons I was not privy to and were certainly not to my liking.”

This provision was “discovered only in recent days.” Discovered? After three years of litigation, nothing about this came up?

On the provision added to the Obama health-care overhaul, Arulanandam said the group requested the language in response to concerns that insurance carriers might use data collected as part of the law to “discriminate” against gun owners. The NRA “worked with people on the Hill and members of Congress” to ensure the provision was included in the final legislation, he said.

This provision hits the George Mason Trifecta. Public choice theory (1), being use to advance the Second Amendment (2), while limiting government’s ability to inquire into personal issues (3).

I guess Speaker Pelosi was right. We needed to pass the law to find out what was in it!

“The Real Hazards of E-Devices on Planes”

December 30th, 2012

Nick Bilton refutes every conceivable reason why electronic devices should be banned during takeoff and landing. FAA, please change this asinine rule.