Dec 31, 2012

The Chief Justice’s 2012 Year-End Report

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

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Dec 31, 2012

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

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.


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Dec 31, 2012

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

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.

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Dec 30, 2012

Obamacare Protects the Second Amendment!?

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!

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Dec 30, 2012

“The Real Hazards of E-Devices on Planes”

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

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Dec 30, 2012

The Table of Contents of “Unprecedented”

Here is how the TOC of my in-progress book stands now, but it is likely subject to change.

Author’s Note

Part I. The Once and Future Mandate (1989 – January 20, 2009)

  1. The Individual Mandate’s Heritage
  2. Hillarycare 1.0
  3. Hillarycare 2.0 v. Obamacare 1.0
  4. Obamacare 2.0 v. McCainCare
  5. Health and Change

Part II. Unprecedented (January 21 2009 – March 23, 2010)

  1. Obamacare 3.0
  2. The Constitutional Debate Begins
  3. The Tea Party
  4. The Mayflower Compact
  5. “It’s Unprecedented”
  6. The Senate
  7. The 40th Vote
  8. “Not True”
  9. The House
  10. The President

Part III. Regulating Inactivity (March 23, 2010 – January 31, 2011)

  1. Of Wheat and Weed
  2. Lawsuits Filed Before The Ink Dried
  3. Broccoli & Limiting Principles
  4. “Not a tax increase.”
  5. Virginia and Florida

Part IV. Coercing the States (February 1, 2011-November 13, 2011)

  1. Strings Attached
  2. New Faces
  3. Healthcare Is Unique
  4. Challenges Dismissed
  5. No Limiting Principle
  6. Judicial Restraint

Part V. “Secure the blessings of Liberty” (November 14, 2011 – March 28, 2012)

  1. Baking Freedom
  2. Changing of the Generals
  3. Certiorari is Granted
  4. The Nine
  5. The Stage Is Set
  6. Day One: Tomorrow it’s a tax, but today it’s not
  7. Day Two: He Choked
  8. Day Three, The Morning: A Hollow Shell
  9. Day Three, The Afternoon: Gun To The Head
  10. The Eagle Has Landed

Part VI. Outside The Supreme Court (March 29, 2012 – June 27, 2012)

  1. Thursday Morning Quarterbacks
  2. The Court’s Legitimacy
  3. “False Equivalency”
  4. “Wobbly”
  5. The end of the term.

Part VII. The Power to Tax – June 28, 2012

  1. The Anticipation
  2. The Handdown
  3. “The Saving Construction”
  4. “Invalid In Its Entirety”
  5. “Survives Relatively Unscathed”
  6. The Court is in recess

Part VIII. The Switch In Time That Saved Nine (June 29, 2012 – November 6, 2012)

  1. Immediate Reactions
  2. The Leak
  3. The Court’s Legitimacy
  4. Repeal Obamacare
  5. Romneycare v. Obamacare
  6. The Election


  1. Obamacare is here to stay
  2. Limits on Medicaid
  3. Other challenges


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Dec 29, 2012

DOJ Opposes Senators McCain, Graham, and Ayotte From Taking Their Argument

I previously blogged about the notion of Senators defending their own laws in court, focusing on the current efforts by Senators McCain, Lindsey Graham, and Kelly Ayotte to intervene as amici in Hedges v. Obama. Now the DOJ has opposed that motion, arguing that the Senators should not take away their time.

First, DOJ contends that they opposed Amici’s request:

Amici’s motion states that “Appellants take no position on the relief sought in this Motion.” Counsel for the government, however, communicated to counsel for the amici that the government would oppose their motion to participate in oral argument unless they made clear in their motion that they were seeking additional time, and not seeking to share the oral argument time to be allotted to defendants-appellants. We further informed counsel that to the extent that they were expressly only seeking additional time, the government would then “take no position” on whether this Court should grant the motion.

It’s not clear from the Senators’ brief that they wanted divided time. Though, I gather DOJ so construed it because the motion did not request additional time. See the conclusion:

For the foregoing reasons, the Senate Amici respectfully request that the Court grant leave for their participation in oral argument and allot them 10 minutes of oral argument time.

In other words, grant them 10 minutes from existing oral argument time, which would, by necessity, come from DOJ’s allotment. I’m not sure what the regular practice is here.

Second, DOJ argues that it is “highly unusual” and “unwarranted” to grant such a request:

Thus, to the extent that the motion of the three amici is seeking to share the time to be allotted to appellants, the government opposes the motion. With respect, it would be highly unusual, and we believe unwarranted in a case such as this, to take argument time from the parties who are subject to a district court’s injunctive order to allow individual members of one component of the legislative branch to provide their views of the meaning and purpose of a federal statute that — as amici themselves agree (Amici Br. 14-20) — expressly states that it did not change existing law. As to whether the Court should expand the oral argument time allotted to grant amici an additional 10 minutes of time, appellants take no position on the motion.

For reasons I’ve stated in prior posts–even assuming that the Senators have fantastic arguments–I think it is unorthodox to treat them as anything more than run-of-the-mill Amici.

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Dec 29, 2012

7th Circuit Implies That Corporations Have Rights Under RFRA In Light of Citizens United

In the past, I have queried whether corporations have First Amendment rights to free exercise of religion.

Tyndale, a D.D.C. contraception mandate opinion addressed, but did not decide this issue.

This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. See, e.g., First Nat’l Bank v. Bellotti, 435 U.S. 765, 777-78 n.14 (1978) (recognizing that corporations have First Amendment speech rights, but declining to “address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment”); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause . . .”); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n.7 (5th Cir. 1981) (same).

Now the 7th Circuit has implied that corporations do not lack protection under RFRA. Judges Sykes and Flaum barred the enforcement of the contraceptive mandate against a company operated by Catholic owners. In deciding this case, the court refuted the government’s claim that rights under RFRA do not apply to a corporation with a citation to Citizens United. Here is the key passage:

In response, the government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).  The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

Though this passage only applies to rights under RFRA, following Citizens United, I don’t think any thing precludes entities under a corporate form from claiming free exercise rights. Another front for corporate personhood.

Judge Rovner disagrees in dissent, though does not outright reject the proposition that corporations can receive protections under RFRA:

Although the Kortes contend that complying with the Patient Protection and Affordable Care Act’s insurance mandate violates their religious liberties, they are removed by multiple steps from the contraceptive services to which they object.  First, it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless:  it does separate the Kortes, in some real measure, from the actions of their company.

At Volokh, Jon Adler writes: ” I agree with the Seventh Circuit that the use of the corporate form is not dispositive, but I would place more weight on the nature of the “corporation” involved.”

A related question. The 10th Circuit denied an injunction in the Hobby Lobby case. The 7th Circuit granted the injunction. Does that mean that Hobby Lobby employees in Illinois  Indiana, and Wisconsin are exempt from the mandate, and that Hobby Lobby employees in the 10th Circuit states are not exempt? Or is it based on the principle place of business (Oklahoma in the case of Hobby Lobby)? How does this work?

Update: Lyle Denniston weighs in here:

Moreover, it sounds somewhat strange for a commercial entity that is considered to have an artificial legal personality, like a corporation, to “exercise” religion.

But to the family-run corporations that have sued to challenge the new contraceptives mandate, that is not strange at all. In fact, Cyril and Jane Korte in their lawsuit explicitly claimed that their construction company has its own right to exercise religion, and as its principal owners, they have insisted that they run its operations every day to reflect their personal religious convictions. The company’s business is, to them, another form of putting their Roman Catholic faith into daily practice.

The federal government challenged those claims in the Kortes’ lawsuit, noting that the family business was organized as a profit-making, secular business that makes no mention of a religious purpose in its incorporation papers, and that it sells no religious products or services. “The government is aware of no case in which a for-profit, secular employer with K&L’s characteristics prevailed” on a religious freedom claim, it said in a court document in the case.

The key dispute in this context thus appears to turn on whether the faith preferences of the owners of a profit-making corporation can be transferred to the business entity so that it is not an independent entity but rather, for constitutional purposes, an alter ego. The Kortes argue that, since the couple owns 88 percent of the construction company, they do treat it as an alter ego to express their faith. And it appears that, at least for the time being, that claim has prevailed in the courts in their case.

Also, Lyle offers this quote from Justice Sotomayor’s opinion as Circuit Justice in the Hobby Lobby case.

“This Court has not previously addressed [religious freedom] or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.”

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Dec 28, 2012

The D.C. Circuit Charges $2.90 Per Page For a Transcript of Oral Argument!?

This is ridiculous.

Current pricing and completion
schedules are:
$2.90 per page – 10 business days
$3.05 per page – 7 business days
$4.55 per page – 2 business days
By order of the Court, copies of oral argument tapes may only be purchased once a case has been completely closed. All appeals, remands, or other additional proceedings must be concluded before the oral argument tape can be reproduced.

The transcript for an hour proceeding is easily 100 pages. $300 pages for a transcript of a court proceeding. Unbelievable.

And it costs $30 for a copy of the audio recording.

Any person interested in purchasing a recording of an oral argument may do so by requesting it inwriting from the Court address on the previous page. Please provide the name of the case, the case number and the date of argument. Once a request for an oral argument recording is received, the Court will determine whether or not the case has been completely closed. If the case has been completely closed, the Court will contact the requestor for payment. The current price for one copy of an oral argument recording is $30 and payment must be made by check or money order only. Please do not send cash. The request for the oral argument recording will be processed as soon as payment is received. The requestor should also indicate a delivery preference. The oral argument tape will either be mailed with first class postage or the tape may be picked up from the Clerk’s Office. If the case has not been completely closed, the requestor will be so notified.

All this to hear Judge Kavanaugh ask about the Anti-Injunction Act. Harumph.

Update: A generous person, who shall remain unnamed, has sent me a copy of this transcript. You can download it here.

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Dec 28, 2012

The Social Cost of the Second Amendment

No, this is not some theoretical piece I’ve put together, but an actual article in the JOurnal of Public Economics, titled “The Social Cost of Gun Ownership.”

Here is the abstract:

This paper provides new estimates of the effect of household gun prevalence on homicide rates, and infers the marginal external cost of handgun ownership. The estimates utilize a superior proxy for gun prevalence, the percentage of suicides committed with a gun, which we validate. Using county- and state-level panels for 20 years, we estimate the elasticity of homicide with respect to gun prevalence as between +0.1 and + 0.3. All of the effect of gun prevalence is on gun homicide rates. Under certain reasonable assumptions, the average annual marginal social cost of household gun ownership is in the range $100 to $1800.

And from the intro:

Widespread gun ownership in a community could provide a general deterrent to criminal predation, lowering the risk to owners and non-owners alike. But widespread gun ownership could also lead to increased risks of various sorts, including the possibility that guns will be misused by the owners or transferred to dangerous people through theft or unregulated sale. Whether the social costs of gun ownership are positive or negative is arguably the most fundamental question for the regulation of firearms in the United States.

Notably, the paper makes no effort to define “social cost.”

In Judging the Constitutionality of Social Cost, I venture to give meaning to social cost–a term something that courts routinely toss around without ever bothering to define.

The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and safety costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety.

This article only considers the liberty costs (how owning a gun can harm others), but fails to consider the safety costs (how the government restricting access to gun can harm individual liberty). Both of these costs are very important.

H/T Tyler Cowen via @JustinWolfers

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Dec 27, 2012

“Most Americans will be left behind, because smart machines will end up devaluing the contribution of workers, including highly skilled workers whose skills suddenly become redundant.”

Paul Krugman opines on the fiscal cliff, and why machines may replace humans.

If you follow these things, you know that the field of artificial intelligence has for decades been a frustrating underachiever, as it proved incredibly hard for computers to do things every human being finds easy, like understanding ordinary speech or recognizing different objects in a picture. Lately, however, the barriers seem to have fallen — not because we’ve learned to replicate human understanding, but because computers can now yield seemingly intelligent results by searching for patterns in huge databases.

True, speech recognition is still imperfect; according to the software, one irate caller informed me that I was “fall issue yet.” But it’s vastly better than it was just a few years ago, and has already become a seriously useful tool. Object recognition is a bit further behind: it’s still a source of excitement that a computer network fed images from YouTube spontaneously learned to identify cats. But it’s not a large step from there to a host of economically important applications.

So machines may soon be ready to perform many tasks that currently require large amounts of human labor. This will mean rapid productivity growth and, therefore, high overall economic growth.

But — and this is the crucial question — who will benefit from that growth? Unfortunately, it’s all too easy to make the case that most Americans will be left behind, because smart machines will end up devaluing the contribution of workers, including highly skilled workers whose skills suddenly become redundant. The point is that there’s good reason to believe that the conventional wisdom embodied in long-run budget projections — projections that shape almost every aspect of current policy discussion — is all wrong.

What, then, are the implications of this alternative vision for policy? Well, I’ll have to address that topic in a future column.

In the past, Krugman has written about the danger of outsourcing legal jobs. I, for one, am not worried about our new robotic overlords.

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Dec 27, 2012

My New Workspace: 7 Screens

Because 6 was not enough. Thanks to the HIS Multi-View II DVI to USB adapter, I was able to add another monitor, on top of the three monitors allowed by the Matrox TripleHead ToGo.


In case you are wondering, each screen has a dedicated function. My MacBook Pro screen is always trained on my gmail. The screen furthest to the left holds my Tweetdeck and Instant Messaging. The next screen to the right holds whatever document, or documents I am reading. The main screen in the middle contains whatever I am typing. The screen furthest to the right contains my Google Reader. My old Macbook Pro is used for ancillary stuff or testing things, and sometimes I will play a video or something on my Nexus 7 Tablet.

The idea is that I can quickly glance at any screen, and know exactly what I’ll find, without having to switch windows. Everything is alway open.

This is the virtual equivalent of laying out a lot of books on a big table, and being able to see many thing at once–just much more efficient. (In the proces of writing my single book, I have not used a single actual book, nor have I put a pen to a single piece of paper).

Here is my old workspace.

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Dec 27, 2012

Green Bag Teaser: A Justice Breyer Bobblehead On The Way?

The Green Bag Bobbleheads are moving from my alma matter of George Mason University School of Law to Washington, D.C. Here is the official notice:

Bobblehead forum conveniens: On January 2, 2013, our bobbleheadquarters will move downtown, to the Washington, DC office of O’Melveny & Myers LLP. The firm has generously offered the bobbleheads a home base close to the Court where their role models work. We hope our many friends who work in or visit DC will appreciate the chance to stop by such a convenient address when they have a certificate to exchange for a bobblehead. All the terms of bobblehead certificates remain in force except: (1) the number to call for an appointment to exchange a certificate for a bobblehead has been changed to (202) 383-5300, and (2) the address to which you should go at the appointed time has been changed to O’Melveny & Myers LLP, 1625 Eye Street NW, Washington, DC. Here is our interpretation (directed by Cattleya Concepcion) of the move, featuring Joshua Cumby performing Dukas’s L’apprenti sorcier, and, of course, the bobbleheads.

To commemorate this move, the posted this enchanting video, titled “Bobbleheads and the Right to Travel: Applying Saenz v. Roe to Ceramics” (see Justice Thomas’s dissenting opinion for one of the first writings to take the Privileges or Immunities Clause seriously).

But at the end of the video, during the credits, there is this gem.


Several justices are thanked: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer. One of these is not like the other?

Justice Breyer is the only Justice on the list not to have a bobblehead. But, he is due for a bobblehead.

The Green Bag has taken a somewhat unorthodox approach to Bobblehead releases, but the most recent additions have been Ginsburg, Thomas, and Souter. Chronologically, Breyer is due.

So, look out for the SGB bobblehead. What will he have? A copy of the House Reports (he loves legislative history)!

See, this is why you never leave a movie early.

Also, do watch Justice Ginsburg’s bobblehead opera.

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Dec 27, 2012

The Positively Wrong Second Amendment on

Here is how the White House describes the Amendments in the Bill of Rights. Which one of these is not like the other:

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms. The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution. The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause. The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice, and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation. The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which they are charged, and to confront the witnesses brought by the government. The amendment also provides the accused the right to compel testimony from witnesses, and to legal representation. The Seventh Amendment provides that civil cases also be tried by jury. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated. The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the states, to either the states or to the people.

The Second Amendment most certainly does not “give citizens the right to bear arms.” There is no conferral of rights. Such a description is positively wrong in the descriptive, and normative sense.

Rather, as its text says (and yes, I’ll quote both the prefatory and operative clause), “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment prevents the right to keep and bear arms from being infringed. Whatever that right is does not matter for this discussion. What is important is where that right comes from–and it isn’t from the Constitution. The Heller Court wrote:

Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of theSecond Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v.Cruikshank92 U. S. 542553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”

Even if you don’t like Heller, the text of the Amendment itself grants no rights. Like the First and Fourth Amendments, it places a limit on what the government can do. Whoever wrote the remainder of these descriptions certainly understands the nature of negative liberty. The description of the First Amendment says “Congress shall make no law.” The description of the Third Amendment says “prohibits the government.” The description of the Fourth Amendment say s”government may not conduct.” Hell, it even gets the 9th Amendment right (more or less). But the Second Amendment, regardless of how you define the right to keep and bear arms, did not confer any rights. Maybe someone should start a petition to get this corrected. That seems to be en vogue today.

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Dec 27, 2012

Senators Defending Their Own Laws In Court

I have previously blogged about the importance and qualifications of legislators who seek to defend laws they wrote in court.

Now, Senators McCain, Graham, and Ayotte, not content to simply submit an amicus brief, want argument time in an upcoming case that considers the National Defense Authorization Act–a law the trio contributed to. Unsurprisingly, their view differs from that of President Obama’s Justice Department, which is litigating the case.

In a brief authored by David Rivkin and Lee Casey (the progenitors of the suit agains the ACA in Florida), and my former classmate Andrew Grossman, the Senators request argument time to address “the history and purpose of the statutory provision under review and the scope of Congress’s power under the Declare War Clause.”

Senate Amici played a leadership role in the drafting and enactment of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war. While the Senate Amici join the Appellants in seeking reversal of the decision below and dismissal of this litigation, their interests and arguments are distinct from those of the Appellants and may aid the Court in resolution of this matter.

The brief argues that the Senators will defend what the Administration can’t:

Although the Appellants, in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions

The brief cites a “unique institutional interest”:

The Senate Amici’s participation in oral argument is also warranted due to their unique institutional interest in the Court’s possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants’ chief interest is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.

Huh? That’s what separation of powers is for. Congress passes laws, knowing that the Executive will enforce it.  Congress preserves their institutional interests by passing laws. Not defending them in Court.

In other words, should the Court move beyond the threshold justiciability issues raised by the Appellants, the Senate Amici have a unique position on Section 1021’s constitutionality, one that is distinct, and potentially in conflict with, the Appellants’ argumentation. Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired

Being a co-equal branch doesn’t allow Congress a say in court.

I recognize that the Senators are participating as Amicus, but would the Senators think they have independent standing to intervene as a party? I never understood why legislators have standing to defend their own laws (yes I am looking at you Bipartisan Legal Advisory Group in DOMA litigation). Of course, when a President fails to defend a law in court, allowing the legislators to step in makes some sense. But here, Obama is actually defending the NDAA. So why are the Senators getting involved? Well, Obama isn’t defending the law in the way McCain, Graham, and Ayotte would like.

They said their piece when enacting the law. Anything they say now is pure post-enactment legislative history, motivated by a desire to affect the application of a staute.

They may be uniquely qualified to explain the statute’s history and purpose, but didn’t they already do that? In the legislative history? In fact, the brief cites statements made by these three in the legislative record! (That’s what he said).

Now the brief offers a particularly unreliable form of post-enactment legislative history–statements made by legislators years after a law is enacted geared to a specific conflict that the enactors of the law likely did not forsee. Further, we have a brief by only three senators who profess an interest in “waging war against America’s terrorist enemies.” What about other members of congress who do not share that aim (I’m sure they exist)? Should their legislative history be discounted? Should the fact that they didn’t submit a brief be dispositive?

Why bother engaging in statutory interpretation when those that enacted the law, in an earlier congress, can just tell the courts how the law should be applied?

And, because I never write about politics, please let me offer the headline “Wile E. Ayotte” to any tabloids. (I only found a few google hits for that). It’s too good to pass u p.

And is it wrong that I knew Ayotte from her SCOTUS case v. Planned Parenthood before I realized she was also a U.S. Senator? Article III is the last, but not least of the branches.

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Dec 26, 2012

The Transcript of the Summary Judgment Oral Arguments in Virginia v. Sebelius Resides In Pacer’s Black Hole

When I attempted to download the arguments held before Judge Hudson in EDVA on 10/18/10 from Pacer, I got this message:

TRANSCRIPT of proceedings held on October 18, 2010 before Judge Henry E. Hudson. Court Reporter/Transcriber Krista Liscio, telephone number 804 916-2296. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/7/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 2/5/2011.(liscio, krista) (Entered: 11/07/2010)

Maybe the court reporter simply assumed the Mayans were right, and wouldn’t need to bother? I’ll call tomorrow.

If you have been wondering why I’ve been somewhat quiet of late, I am going through all of the lower court proceedings, including the transcripts, in the ACA cases. I’ve gone through all of NDFL and the 11th Circuit. Now I’m turning to EDVA and CA4.

It’s amazing how much stuff is packed into this case.

Update: A court reporter from EDVA returned my call, and said she could sell me the transcript directly. Congress mandated that the charge is $.90 a page (lol, Congress mandated a price for the transcript of the constitutionality of congress’s mandate). At 80 pages, that is a lot of money! I will try calling the clerk’s office to see why it was not posted on PACER.

Update: I just spoke with the Clerk’s office, and for some reason the transcript was never released. I have a copy, which you can download here. Somehow, no one ever bothered to check if the document was available.

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Dec 26, 2012

I Think Chris Christie Has Some Competition For The Governor Race

Because Vinnie from Jersey Shore wants to be a politician!

“I want to get into politics,” Vinny says … “So i was gonna go to law school to get involved in politics.”

He added, “I know this sounds stumbling coming out of a club … but I actually have a brain.”

This could be a Jersey Gamechanger.

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Dec 25, 2012

Can you use the First Amendment as a defense to the Second Amendment?

David Gregory is under some kind of investigation for waving around a 30-round magazine on Meet the Press, which is filmed in Washington, D.C., where possession of such magazines is generally illegal. Doug Mataconis raised an interesting historical bit.

For the record, though, if this is indeed a violation of the law, there isn’t likely to be a “journalistic” exception. Several years ago, another journalist here in the D.C. area faced prosecution after it was discovered that he had images of child pornography on his laptop. As a defense, he claimed that he was investigating the world of underground child pornography for a story he was writing and that he should be entitled to a First Amendment defense. After several hearings and appeals, the defense was rejected and the journalist in question went to Federal Prison. In other words, you cannot violate the law in the practice of  journalism.

Could Gregory possibly use the First Amendment as a defense to what the Second Amendment ought to protect (though Gregory likely disagrees with that construction of the Second Amendment)? In other words, does his journalistic duty as a member of the press give him special protections against gun laws? Hell, if it does, every blogger living in D.C. should cite a 1st Amendment right to possess a 30-round clip.


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Dec 24, 2012

Nullification: It’s Still A Jersey Thing

I have previously blogged about New Jersey’s efforts to offer sports gambling in state, even though it is in clear violation of federal law.

Now MLB, NFL, NHL, NBA, and the NCAA are suing New Jersey in D.N.J., after a judge found that the leagues have standing to sue.

David Stern, the long-time commissioner of the NBA, and an attorney, was quite pithy in his comments:

“The one thing I’m certain of is New Jersey has no idea what it’s doing and doesn’t care because all it’s interested in is making a buck or two, and they don’t care that it’s at our potential loss,” Stern said when asked how the advent of sports betting in New Jersey would harm the NBA.

“And wholly apart from the fact that a governor, who’s a former U.S. Attorney, has chosen to attack a federal law which causes me pause for completely different reasons since I’ve at times sworn to similar oaths about upholding the law of the United States,”

Yep, Chris Christie is doing his best John C. Calhoun impression.

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Dec 24, 2012

I dream of benchslaps

Last night I had an odd dream that I was clerking for Judge Posner, but he was on a district court. I was sitting in the seat in front of the bench were the courtroom deputy would sit. Judge Posner started the proceeding, stopped, started to point at someone in the gallery, and ordered that person to be removed from the court. Everyone started looking around confused. No one knew whom Posner was pointing at, so he got off the bench and walked down to point the person out. (I couldn’t tell if that person was being disruptive). The marshalls forcibly removed the person. Then Posner leaned over the bench and told me that I was doing something wrong (not sure what). That’s all I remember.

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