Jan 31, 2013

Westboro Baptists File Amicus Brief in Support of Prop 8

I’m sure the supporters of Prop 8 are thrilled to have the Westboro Baptists in their corner. Why, look at the summary of their argument:

The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God.

And the Table of Authorities has over 20 citations to the Bible!, and a citation to Sinners in the Hands of an Angry God (I haven’t thought of that since high school)!

What exactly is there interest?

WBC began picketing over 20 years ago, warning that homosexuality was going to be the destruction of America.

The brief is authored by Margie Phelps, who argued Snyder v. Phelps before the Suprem Court. Interestingly, Cockle printed their brief.

H/T Paul S.

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Jan 31, 2013

7th Circuit in Contraceptive Mandate Case: “use of the corporate form” not dispositive to resolving RFRA claim

Building on their previous judgment holding that corporations can advance claims under RFRA, the same three-judge panel of the 7th Circuit (Flaum, Sykes, and Rovner) enjoined the contraceptive mandate as applied to another for-profit business that objects to the mandate on religious liberties grounds.

In Grote v. Sebelius, the panel reaffirmed its holding that the mere fact that a corporation is advancing a RFRA claim does not halt the claim.

In response the government advances the same arguments as it did in Korte.   To abbreviate, the government maintains that (1) a secular, for‐profit corporation cannot assert a claim under RFRA; (2) relatedly, the free‐exercise rights of the individual plaintiffs are not affected because their corporation is a separate legal entity; and (3) the mandate’s burden on their free‐exercise rights is too remote and attenuated to qualify as “substantial” under RFRA because the decision to use contraception benefits is made by third parties— individual employees, in consultation with their medical providers.  We addressed these arguments in our order in Korte, and nothing presented here requires us to reconsider that prior ruling. Here, as in Korte, the Grote Family’s use of the corporate form is not dispositive of the claim. See Korte, 2012 WL 6757353, at *3 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)).  And the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here. Id.  The members of the Grote Family contend that their faith forbids them to facilitate access to contraception by paying for it, as the mandate requires them to do.

This tees up the issue more closely of whether corporations can advance religious liberty arguments.

Judge Rovner elaborated on her dissent on this point, stressing that the religious interests of the owners are not coterminous of the corporation qua person.

 As such, I cannot imagine that the company, as distinct from the Grotes, has any religious interests or rights to assert here.  To be sure, a secular corporation does have some types of First Amendment rights:  it has the right to engage in commercial speech in the promotion of its products, for example, see generally Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 100 S. Ct. 2343 (1980), and in pursuit of its interests as a corporate citizen, it has the right to articulate what government policies it supports or opposes and to contribute money to political campaigns in pursuit of its commercial agenda, see Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876 (2010).  Moreover, there do exist some corporate entities which are organized expressly to pursue religious ends, and I think it fair to assume that such entities may have cognizable religious liberties independent of the people who animate them, even if they are profit‐ seeking.  See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323, at *6‐*7 (D.D.C. Nov. 16, 2012) (for‐profit publisher of Christian texts, owned by not‐for‐profit religious foundation and related trusts which directed publisher’s profits to religious charity and educational work); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter‐day Saints v. Amos, 483 U.S. 327, 345 n.6, 107 S. Ct. 2862, 2873 (1987) (Brennan, J., concurring in the judgment) (“it is . . . conceivable that some for‐profit activities could have a religious character”). 1   Indeed, there is a regulatory exemption from the contraception mandate for religious employers.  45 C.F.R. § 147.130(a)(1)(iv)(B).  But it appears to be common ground among the parties that Grote Industries does not meet the criteria for such an employer.  So far as it appears, the mission of Grote Industries, like that of any other for‐profit, secular business, is to make money in the commercial sphere.  In short, the only religious freedoms at issue in this appeal are those of the Grotes, not the companies they own.  See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously‐motivated actions separate and apart from the intention and direction of their individual actors.  Religious exercise is, by its nature, one of those “purely personal” matters referenced in [First Natʹl Bank of Boston v. Bellotti, 435 U.S. 765, 778 n. 14, 98 S. Ct. 1407, 1416 n.14 (1978)] which is not the province of a general business corporation.”).

H/T Religion Clause


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Jan 31, 2013

Will Robots Create New Jobs?

The International Federation of Robotics says yes!

To buttress its claim that automation is not a job killer but instead a way for the United States to compete against increasingly advanced foreign competitors, the industry group reported findings on Tuesday that it said it would publish in February. The federation said the industry would directly and indirectly create from 1.9 million to 3.5 million jobs globally by 2020.

The federation held a news media event at which two chief executives of small American manufacturers described how they had been able to both increase employment and compete against foreign companies by relying heavily on automation and robots.

“Automation has allowed us to compete on a global basis. It has absolutely created jobs in southwest Michigan,” said Matt Tyler, chief executive of Vickers Engineering, an auto parts supplier. “Had it not been for automation, we would not have beat our Japanese competitor; we would not have beat our Chinese competitor; we would not have beat our Mexican competitor. It’s a fact.”

While I am generally skeptical of a trade group that releases numbers predicting that its own thing will be good, it makes sense as a matter of comparative advantage. In the United States, robots will take over jobs that are being outsourced, and the service industry surrounding those robots will yield more jobs here in the United States. The simple economics suggest this is right.

Similar dynamics apply to the legal market.

This book disagrees with the book Race Against the Machine, which I blogged about last year.

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Jan 31, 2013

Constitutional Places: “60-story skyscraper” Atop Grand Central Station

The Times has a great piece about the history of Grand Central State, the situs of the famous Penn Central v. New York. There is an interesting discussion about the decision not to build office space atop the building. This choice, ultimately, led to Penn Central.

In 1903, the Central invited the nation’s leading architects to submit designs for the new terminal. Samuel Huckel Jr. went for baroque, a turreted confection with Park Avenue slicing through it. McKim, Mead & White proposed a 60-story skyscraper — the world’s tallest — atop the terminal (a modified version was later incorporated into the firm’s design for the 26-story municipal building, completed in 1916), itself topped by a dramatic 300-foot jet of steam illuminated in red as a beacon for ships and an advertisement (if, even then, an anachronistic one) for the railroad.

Reed & Stem, a St. Paul firm, won the competition. The firm began with two big advantages. It had designed other stations for the New York Central. Moreover, like the Central itself, Reed & Stem could count on connections: Allen H. Stem was Wilgus’s brother-in-law. Yet in the highly charged world of real estate development in New York, another firm’s connections trumped Reed & Stem’s. After the selection was announced, Warren & Wetmore, who were architects of the New York Yacht Club and who boasted society connections, submitted an alternative design. It didn’t hurt that one of the firm’s principals, Whitney Warren, was William Vanderbilt’s cousin.

The Central’s chairman officiated at a shotgun marriage of the two firms, pronouncing them the Associated Architects of Grand Central Terminal. The partnership would be fraught with dissension, design changes and acrimony and would climax two decades later in a spectacular lawsuit and an appropriately monumental settlement.

To Wilgus’s dismay, the Warren & Wetmore version eliminated the revenue-generating office and hotel tower atop the terminal. It also scrapped proposed vehicular viaducts to remedy the obstruction of Fourth Avenue, now Park, created by the depot.

A 300 foot red jet of steam? That would’ve been something.

Here are the designs for adding a skyscraper to Grand Central Station in the 1960s. These, were of course, never built. To give you a sense of where Grand Central is, and how the later redesign would have fit into the city, this diagram is helpful:

Here are blueprints of the two proposed designs to build above Grand Central. The first design, Breur I, would have preserved the exterior and built a tower. “The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal.”

The second design, Breur II, would have stripped the facade and built the tower. “The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building.”

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Jan 31, 2013

Prop1 Class 6 – The Bundle of Sticks

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.


The lecture notes are here, and the livechat is here.

Here is an article from 1970 discussing the case of State v. Shack.


Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.


And this is Richard Epstein.


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Jan 31, 2013

Prop2 Class 6 – Deeds & Warranties II

Today we will continue our discussion of deeds and warranties. Here is a sample warranty deed from Texas, an earnest money contract.

Today’s lecture notes are here. The livechat is here.

Today at noon the Federalist Society will host an event on Atticus Finch and Legal Ethics. My favorite professor from Law School, Michael Krauss will be presenting. If you are interested in the difficulties of being an ethical lawyer–or want some food from Phoenicia, please consider attending.


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Jan 31, 2013

I have been in seven airports in the last six days

On Thursday I flew from Houston (IAH) to Ft. Lauderdale (FLL) to visit my Grandpa in Boca (contrary to my fears in my last post in August, he is still with us, though mostly in body). On Friday, I drove across Florida to attend the GMU LEC Conference in Captiva. I left Captiva Monday and flew from Ft. Myers (RSW) back to Houston (IAH).

On Tuesday, I taught my two classes, and immediately after classes were over, I hightailed it to Houston’s other airport, Hobby (HOU) and flew to Reagan (DCA) with a layover in Atlanta (ATL). I got into DC around midnight.

Wednesday morning, I presented on a panel at Georgetown Law Center from 10:45-12:00, then did a number of important interviews for my book. I returned to GULC at 4:00 for an all-star panel on the Supreme Court. I was supposed to fly home  from DCA to ATL to HOU on Airtran, but there were some massive thunderstorms in Atlanta. While following the Supreme Court panel, my DCA flight went from delayed by 20 minutes to 40 minutes to 1 hour to 2 hours (it was cancelled around 9:00 p.m.). At that point, I realized I would never make my connection in Atlanta.

I have class Thursday at 9:00 a.m., and I am loathe to cancel class unless absolutely necessary (it hasn’t happened yet). I even made provisions to teach the class by Skype in the event I got stranded. So I checked other flights, and purchased a direct ticket on Southwest from BWI to HOU. Rather than taking the Metro to Reagan, I took the MARC to BWI (my 7th airport!) and flew direct back to HOU.

Major props to Airtran. They refunded the cost for the leg from Reagan to Atlanta to Houston, even before the flight was cancelled–and they did it from the BWI ticket counter!

I am really excited, because in addition to class tomorrow, Professor Michael Krauss from GMU (one of my all-time favorite profs) will be speaking at the South Texas Federalist Society on Atticus Finch and legal ethics. My colleague Professor Jim Paulsen will provide commentary. The students are in for a treat.


As hectic as this journey is, this does not beat my previous record of six airports in 36 hours during my November 2012 whirlwind trip from Houston to Detroit to Lansing to O’Hare, and MIdway to Dulles, followed by a return trip from Reagan back to Houston.

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Jan 30, 2013

Does the Right to Self Defense Imply A Right To Purchase Organs to Save A Life?

John Robertson has  very interesting paper that mashes up the Second Amendment and organ markets, and sprinkles in a little Abigail Alliance and Washington v. Glucksberg for good measure. The title is “Paid Organ Donation and the Constitutionality of the National Organ Transplant Act

A person can buy a handgun for self-defense but cannot pay for an organ donation to save her life because of the National Organ Transplantation Act’s (NOTA) total ban on paying “valuable consideration” for an organ donation. This article analyzes whether the need for an organ transplant, and thus the paid organ donations that might make them possible, falls within the constitutional protection of the life and liberty clauses of the 5th and 14th amendments. If so, government would have to show more than a rational basis to uphold NOTA’s ban on paid donations.

The article begins with an examination of Flynn v. Holder, a 2012 9th Circuit case, that found that NOTA ban paying for bone marrow donations by aspiration was constitutional under rational basis review, even though bone marrow was renewable tissue and donation involved comparable risks to the paid blood, sperm, and egg donations which are excluded from NOTA’s ban.

It then argues that some form of heightened scrutiny should apply to laws banning paid bone marrow, kidney, and cadaveric donations as well as bans on paid kidney and cadaveric donations. It bases that argument on the resurgence of constitutional interest in self-defense seen in the Second Amendment handgun cases and in a substantive due process right to life and liberty. Together those developments form the basis of a constitutional right of medical self-defense (a negative right to use a safe and established medical treatment when reasonably necessary to protect a person’s life), despite the narrow test for recognition of new rights contained in Washington v. Glucksberg and Abigail Alliance v. Eschenbach.

Applying heightened scrutiny to four situations involving paid organ donation, the article shows that banning paid donation may be rational based on speculation or conjecture about harm to donors, unsafe organs, crowding out of altruism, exploitation of the poor, or moral distaste at paying for body parts. But those concerns hardly satisfy the heightened scrutiny that interference with a person’s right to life should require. A highly regulated private system of paying donors should be found constitutional when government is unwilling to act.

H/T Larry Solum

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Jan 30, 2013

LiveStream: My Talk at Georgetown on Big Data and the Law

My talk should begin at 10:45ish.

Check out information on the symposium and my panel here:

10:45 a.m. – 12:00 p.m.
Panel 2: Big Data Applications in Scholarship and Policy I

  • Josh Blackman, Assistant Professor of Law, South Texas College of Law
  • Carole Roan Gresenz, Professor, Georgetown University School of Nursing & Health Studies
  • Bill LeFurgy, Digital Initiatives Manager, National Digital Information and Infrastructure Preservation Program, Library of Congress
  • Kathy Zeiler, Professor of Law, Georgetown University Law Center
  • ModeratorKumar Percy Jayasuriya, Associate Law Librarian for Patron Services, Georgetown University Law Center

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Jan 30, 2013

How does a 1607 English Law Dictionary Define Liberty? And Lord Coke and King James Banned It For Sedition.

This is a great story.

The Interpreter, first published in 1607 by John Cowell, was one of the first law dictionaries in English. Cowell was a civil law professor at Cambridge. The full title is “The Interpreter: Or Booke Containing the Signification of Words: Wherein is Set Forth the True Meaning of All, or the Most Part of Such Words and Termes, as are Mentioned in the Law Writers, or Statutes of This Victorious and Renowned Kingdom, Requiring Any Exposition or Interpretation. A Work not Onely Profitable, but Necessary for Such as Desire Throughly to be Instructed in the Knowledge of Our Laws, Statutes, and Other Antiquities.”

The South Texas Library has an original copy of the Interpreter in its archives, with an original printing date of 1607. Amazingly, this document is roughly equal in time from Magna Carta (393 years) and the Present (405 years).


So of course the first thing I do is look up the definition of the word liberty.

LIbertas (libertas) is a priuiledge [privilege] held by graunt or prescription, whereby men enjoy some benefite or fauour [favor] beyond the ordinarie subject, Liberties royal what they be, see in Bracton. lib. 2. cap. 5. Broke hoc titulo. See Franchise.


Bract. refers to Bracton on the Laws and Customs of England. Interestingly, I found a citation to that same chapter in Coke’s Institute’s which were published between 1628 and 1644. The Interpreter came first.

Coke cited this passage in a section talking about feudal property law and Magna Carat.


A later version of The Interpreter, which the library also has a copy of, from 1708 has a mostly similar definition of liberty, though it is referred to as “liberty” as well as “libertas.” Also, the spelling has become more consistent with how we spell today.

Liberty, Libertas, Is a Privilege held by Grant or Prescription, whereby men enjoy some benefit or Favour beyond the ordinary subject. Liberties Royal, what they be, see in Bract. lib. 2. cap. 5 and Broke hoc titule. See Franchise.


From Legal bibliography, or a thesaurus of American, English, Irish, and Scotch law books: together with some continental treatises. Interspersed with critical observations upon their various editions and authority. To which is prefixed a copious list of abbreviations (1847), of which the school also has an original copy, we learn a fascinating fact–this book was banned! By Sir Edward Coke, who used the same citation to Brachton for liberty!

“Sir Edward Coke, discovered that the Interpreter contained what they represented to be dangerous doctrines under the titles, Subsidy, Parliament, King, Prohibition, &c.” Cowell was charged with “villifying the laws of England and endeavoring to expose Littletons’ Tenures; whereas, in truth, all that could justly be charged on him (as to this particular) was only a modest recital of Hottomans’ raillery and objections. But this, together with Coke’s proverbial hatred of the civlians was enough to excite his deep and continued animosity towards Cowell, who, chiefly through Coke’s influence, was thrown into prison, threatened to be hanged, and his Interpreter was suppressed by a royal proclamation and publicly burned; for which the Commons returned thanks with great joy at their victory.”

coke books1



Coke is burning books! Wow!

William Holdsworth wrote that King James I suppressed the book in support of Coke and other common law lawyers, who it seems did not like the Civil-law inspired digest, based on Justinian.

“Cowell follows exactly the order and books of the Justinian Institutesand forces the English material into this exotic mold….

“Unfortunately, the (Interpreter) trespassed upon the domain of politics by expressing pronounced absolutist views in its definitions of Prerogative, Parliament and Subsidie….

“Coke and the common law lawyers … combined with the constitutional opposition to attack Cowell and his book and James I thought it politic to disown him. The book was suppressed by Royal proclamation.”

Julius Marke wrote:

“Its publication provoked controversy. At a time when Parliament and crown were vying for power, the Commons disapproved of Cowell’s royalist sympathies, which were evident in such definitions as “King,” “Parliament,” “Prerogative,” “Recoveries” and “Subsidies.” When a joint committee of Lords and Councilors reviewed the work, the ensuing controversy nearly halted the affairs of government….

“James I intervened in fear that his own fiscal interests would not be approved by Parliament. Encouraged by Coke, the king imprisoned Cowell, suppressed the book and ordered all copies burned by a public hangman on March 10, 1610 (Ed. note: correct date is 26 March). Moreover, The Interpreter contained a quotation that criticized Littleton’s scholarship, which alienated and enraged Sir Edward Coke. It comes as no surprise that he was instrumental in the book’s suppression and in Cowell’s persecution.”

Here is the indictment:

“Anno 7 Jacobi, 1909, Dr. Cowell, Professor of the Civil Law at Cambridge, writ a book called The Interpreter, rashly, dangerously and perniciously asserting certain heads to the overthrow and destruction of Parliaments, and the fundamental laws and government of the Kingdom.”

Treason for publishing a dictionary. Bryan Garner would not have been so prolific back in the day…

This was all a battle between the common law courts and civil law courts.

Good thing a copy of the original, banned version from 1607 survived. Here is how Parliament and Perogative of the King are defined:

“Parliament: A solemn conference of all the states of the kingdom summoned together by the Kings only authority to treat of the weighty affairs of the realm.

“Prerogative of the King: That special power, preeminence or privilege which the king hath over and above other persons and above the ordinary course of the common law in the right of his crown.”

Thanks to Heather Kushnerick, the Special Collections Librarian at South Texas for showing me this gem and providing me with information about the history of the book.

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Jan 29, 2013

Justice O’Connor Punts Second Amendment Question From Second Circuit To NY Court of Appeals

Yes, Justice O’Connor is still hearing cases–this time considering whether New York’s denial of a handgun license (in the home, not carry) to a person who only lives in New York part-time is constitutional. Before confronting the Second Amendment issue, O’Connor found that it was unclear as a matter of New York law how this statute was understood.

Rather than resolving the issue, she certified this question to the New York Court of Appeals (the court of last resort in the Empire State):

Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?

Of course, Justice O’Connor was not on the Court for Heller. Justice Alito replaced her. So it is an interesting counterfactual how SDO wrote about the right to keep and bear arms.

To begin, we agree with both parties that there is a serious constitutional question in this case. This Court has recently held that “Second Amendment guarantees are at their zenith within the home,” Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012), and a domicile requirement will operate much like the bans struck down in Heller and McDonald v. Chicago, 130 S. Ct. 3020 (2010), for part-time New York residents whose permanent homes are elsewhere. At the same time, this Court has acknowledged that the ground opened by Heller and McDonald is a “vast ‘terra incognita’” that “has troubled courts since Heller was decided.” Kachalsky, 701 F.3d at 89 (quoting United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J.)). It is open to Osterweil to make his domicile in New York, so even a domicile requirement may not be the kind of absolute ban that the U.S. Supreme Court has already addressed, and some regulation of itinerant handguns is clearly valid. See Kachalsky, 701 F.3d at 100 (“[E]xtensive state regulation of handguns has never been considered incompatible with the Second Amendment or, for that matter, the common-law right to self-defense.”). Thus, we would confront a serious and very difficult question of federal constitutional law if required to evaluate a domicile requirement.

Oh yeah, and Paul Clement, who argued Heller and McDonald, argued this case.

H/T How Appealing

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Jan 29, 2013

I didn’t realize Ciara was such an admin law fan

She raps about Chevron v. NRDC.

 Rock it, don’t stop it,
Everybody get on the floor,
Wake the party up,
We about to get it on,
(Let me see ya’ll)
1,2 step,
(I love it when ya’ll)
1,2 step
1,2 step,
We about to get it on

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Jan 29, 2013

Why is New York City Removing Ignored “No Honking” Signs?

The New York Times reports that New York CIty is removing signs that warn people not to honk their horns. Why? They are ignored.

Now, it appears, the city has effectively thrown up its hands — or, more accurately, taken down its signs.

In a move condemned by critics as a tacit surrender to a ubiquitous noise, the Transportation Department is removing all “Don’t Honk” signs from the streets, and predicts there will be none left by the end of the year.

City officials said the move was part of an effort to declutter the streets of often ignored signs.’

But why would New York eliminate signs? What is the cost of leaving them up? They can’t hurt anyone, right?

 Nonetheless, the decision has ignited a voluble opposition among noise-conscious New Yorkers, particularly in high-traffic residential areas like the Upper East and Upper West Sides.

“I can’t tell you how many requests I get for ‘no honking’ signs,” said Gale A. Brewer, a councilwoman in Manhattan who wrote a letter to the city’s transportation commissioner, Janette Sadik-Khan, arguing against the change. “The notion of taking down information when information is so hard to get in New York City is pretty bad.”

Brewer could not be more wrong. It is possible to have too much information–and with too much information, signs are often ignored.

Nate Silver writes about over-signage in his cool new book, The Signal and the Noise. In short, where there are too many signs (call it the noise), it is harder to find the important signs (call it the signal). If everyone is simply ignoring the no-honking signs, they get into the behavior of ignoring all of the signs, including the important ones. Also, people become overly reliant on the signs, and stop relying on their own judgment (a problem that many underestimate with the move towards disclosing EVERYTHING).

Many cities in Europe have begun to eliminate signs, to great success (see here, here, and here). From the UK Guardian:

Far from generating anarchy, road rage and a trail of death and destruction, taking away traffic controls prevents drivers ‘bunching’ into gridlock and speeding because it forces them to slow down and take more care.

Experiments in towns in the northern Friesland region found that busy junctions where two or three people had been knocked down and killed every year dropped to a zero death rate when they took the traffic lights away and put a tree in the middle of the street instead. UK experts now believe the same methods could work in Britain.

The unusual traffic arrangements are based on forcing motorists to rely heavily on eye contact with each other, pedestrians, cyclists and bus drivers instead of falling back on road signs and red lights to dictate their driving. When drivers have to keep an eye out for potential obstacles and casualties because there are no lines, traffic lights or lane markings they automatically slow down to below 20mph – a speed where a child who is knocked down is five times more likely to live as one who is hit at more than 30mph.

By eliminating the ignored signs, they make the important signs more observable.  The City’s comments implicitly acknowledge this:

Seth Solomonow, a spokesman for the department, said that while the reason for the drop was unclear, “we’re not aware of any evidence that the signs have had any impact at locations where they’ve been installed.”

He said the signs could even be misleading, if a driver believed that unnecessary honking was prohibited only at locations that had them, and said the city had improved signal timing to better avoid gridlock and the honking it so often yields.

I doubt Mayor Bloomberg’s Politburo is aware of this science–it aims to over-regulate everything else. But for once, I am glad that NYC walked into an effective act of informational asymmetries.

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Jan 29, 2013

I will be presenting at Georgetown Law’s Symposium on Big Data on 1/30/13

Check out information on the symposium and my panel here:

10:45 a.m. – 12:00 p.m.
Panel 2: Big Data Applications in Scholarship and Policy I

  • Josh Blackman, Assistant Professor of Law, South Texas College of Law
  • Carole Roan Gresenz, Professor, Georgetown University School of Nursing & Health Studies
  • Bill LeFurgy, Digital Initiatives Manager, National Digital Information and Infrastructure Preservation Program, Library of Congress
  • Kathy Zeiler, Professor of Law, Georgetown University Law Center
  • ModeratorKumar Percy Jayasuriya, Associate Law Librarian for Patron Services, Georgetown University Law Center

I will be talking about Assisted Decision Making and FantasySCOTUS. Hope to see you there!

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Jan 29, 2013

Prop2 Class 5 – Contract of Sales III

Today we will talk about implied warranties of quality, and introduce the concept of the deeds.

The lecture notes are available here. The livechat is available here.

This story about whether a seller has a duty to disclose that a previous owner of a home died from a drug overdose ties into our lecture from last class. Also this story, explores whether a buyer in New York City can recover a $5 million downpayment for a luxury home. This article talks about a Pennsylvania case where a buyer seeks to rescind a contract to purchase a house because the seller failed to disclose there was a murder-suicide in the home. Finally, we will reference this Texas General Warranty Deed in class.


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Jan 29, 2013

Prop1 Class 5 – Property in Yourself

Today we will discuss how you can own property in yourself.

The lecture notes are here, and the live chat is here.

First, we’ll do the case of White v. Samsung Electronic America.

vanna v. samsung

The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.


Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).



To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.

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Jan 28, 2013

I agree with Jefferson on Waiting Period for Laws

In the past, I have proposed on numerous occasions that legislatures should impose waiting periods between the proposal of a law, and its enactment, to mitigate against black swan problems, and ensure that cooler heads prevail.

Tim Sandefur, in commenting on Glenn Reynold’s Op-Ed that makes the case for such waiting periods, offers this fascinating bit of history.

 Thomas Jefferson actually suggested a similar idea in the first note he sent Madison after seeing the draft Constitution: “The instability of our laws is really an immense evil,” he wrote. “I think it would be well to provide in our constitutions that there shall always be a twelve-month between the ingrossing a bill & passing it: that it should then be offered to it’s passage  without changing a word: and that if circumstances should be thought to require a speedier passage, it should take two thirds of both houses instead of a bare majority.”

This is strikingly similar to something I proposed two years ago. A waiting period, followed by a super-majority requirement to retain in force an expedited law.

Let’s impose Legislative Waiting Periods. Before legislatures can pass laws, a legislative cooling off period should be in order. If people need cooling off periods before buying a gun and doing something stupid with it, legislatures should need a cooling off period before hastily ramming through a law. Any bill introduced in either house cannot be voted on for X months. If it’s that important, it can wait. If there is some type of exigency, emergency legislation can be passed right away, but it is only effective for Y days, and must be renewed by a supermajority every Z days (kind of like the War Powers Act). Frankly laws of this magnitude often take months, and even years to be implemented. There are countless rulemakings that need to occur. In some cases, waivers are given to delay any inconveniences for years. Waiting a few months before passing the bill won’t change anything. I’m sure with more deliberation time, the law can only be improved. Congress would be well served to move with all deliberate speed. (Yes we recognize the constitutional infirmities of this approach, but we’re just theorizing here.)

This is a very Burkean approach to legislating. I have discussed the interplay between Burkeanism, Black Swans, and libertarianism here, here, and here.

I hope to write this black swan article this summer, along with Robot, Esq. and some other stuff.

Update: More from SHG:

While Reynolds’ proposition may not serve in every instance, such as when we are about to go over a fiscal cliff and need an immediate stop-gap to prevent a discrete outcome no one wants, it certainly has its merit when it comes to social and criminal legislation in the heat of passion.

But as he notes, it’s never going to happen, as the last thing legislators want is a limitation on their ability to pander when an opportunity presents itself.  Thoughtfulness and deliberation are hardly strong selling points with an election coming up, as it does every two years.

When will people make it a priority to hold their representative to actually reading a law before they vote on it?  Don’t be silly. Voters would never expect their representative to do something they wouldn’t do themselves.  And so we have a lot of laws named after dead children, enacted in the heat of passion because we have to do something, that still haven’t made our world perfect. What’s one more?

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Jan 28, 2013

VCR and Wheel of Fortune in 2012

In White v. Samsung Electronic America, Vanna White sued Samsung for creating an advertisement that invoked the image of her. The purpose of the advertisement was to illustrate that in 2012, Vanna White would be replaced by a robot, but Samsung VCRs would still be used to record it.

Here’s how Judge Kozinski described it in his dissental.

The ad that spawned this litigation starred a robot dressed in a wig, gown and jewelry reminiscent of Vanna White’s hair and dress; the robot was posed next to a Wheel-of-Fortune-like game board. See Appendix. The caption read “Longest-running game show. 2012 A.D.” The gag here, I take it, was that Samsung would still be around when White had been replaced by a robot.

Oh, it is exactly the opposite.


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Jan 26, 2013

Chief Justice Roberts Asks About The Recess Appointment Power and NLRB

Yesterday, I queried what the Supreme Court would think about the D.C. Circuit’s interpretation of the recess power. We may have a clue.

In New Process Steal v. NLRB, Chief Justice Roberts and Neal Katyal talked about the recess power. Roberts seemed to endorse the recess appointment power as a way to break the NLRB’s political holdups.

JUSTICE SCALIA: Do — do we have any notion when — when the board will reduce to one? (Laughter.)

JUSTICE SCALIA: When — when — when is one of the two’s term over?

MR. KATYAL: In the absence of any further confirmations or other appointments, one of the members, Member Schaumber, will leave on August 27th of this year.

JUSTICE SCALIA: Of this year. At which point there will be some pressure on Congress, I guess, right?

MR. KATYAL: There will. JUSTICE GINSBURG: There are — there are two nominees, are there not?

MR. KATYAL: There are three nominees pending right now.


MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions -­

CHIEF JUSTICE ROBERTS: Thank you, counsel.

The Chief Justice would not seem to endorse the D.C. Circuit’s reasoning.

H/T Steve R.

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Jan 26, 2013

Anonymous Takes Down U.S. Sentencing Commission Web Site, Hacks Private Docs About All 9 Justices?


Hacktivist group Anonymous took control of the U.S. Sentencing Commission website Friday, January 25 in a new campaign called “Operation Last Resort.”

The first attack on the website was early Friday morning. The second – successful – attack came around 9pm PST that evening.

By 3am PST ussc.gov was down (it has since been dropped from the DNS), yet as of this writing the IP address ( still returns the defaced site’s contents.

It appears that via the U.S. government website, Anonymous had distributed encrypted government files and left a statement on the website that de-encryption keys would be publicly released (thus releasing the as-yet unkonwn information held on the stolen files) if the U.S. government did not comply with Anonymous’ ultimatum demands for legal reform.

Interestingly, they may have hacked private information about the Judges, including Justice Scalia!

It is possible, as suggested by the file names, that Anonymous may have taken files pertaining to each of the judges (all of whom were named on filenames at the bottom of the defaced page, such as “Scalia.warhead1”) and put them in a file (named “Warhead-US-DOJ-LEA-2013.aes256”) and then appended a command to the file that would nuke the file.

Scalia is your friend, Anonymous. Nino thinks the guidelines are advisory.

Another site reports that there is a file for each Justice:

The site contains links to 9 encrypted files, one for each of the current Supreme Court Justices.

The files are intended to be concatenated into a single file named: Warhead-US-DOJ-LEA-2013.aes256

(US-DOJ-LEA = United States – Department of Justice – Law Enforcement Agency)

aes256 is apparently the encryption scheme used to encrypt the files.

File names (and sizes): 1115 MB total

  Scalia.Warhead1 (150 MB)
  Kennedy.Warhead1 (108 MB)
  Thomas.Warhead1 (150 MB)
  Ginsburg.Warhead1 (150 MB)
  Breyer.Warhead1 (150 MB)
  Roberts.Warhead1 (23 MB)
  Alito.Warhead1 (150 MB)
  Sotomayor.Warhead1 (101 MB)
  Kagan.Warhead1 (133 MB)
Relevant quotes pertaining to the file contents:

The contents are various and we won’t ruin the speculation by revealing them. Suffice it to say, everyone has secrets, and some things are not meant to be public. At a regular interval commencing today, we will choose one media outlet and supply them with heavily redacted partial contents of the file.

Should we be forced to reveal the trigger-key to this warhead, we understand that there will be collateral damage.

It is our hope that this warhead need never be detonated.

Summary: the file contains “various secret contents”, the file has one encryption key to reveal all data, they intend to release previews of the data, they may not release the encryption key (although chances of this seem unlikely).

The encrypted data is almost certainly larger than the unencrypted data, my guess is the unencrypted data is closer to 600MB to 900MB (In the ballpark of the size of a standard 700MB data CD).

Initially I thought the 9 files may contain data about each of the SC Justices, or perhaps information intended for each of them. However, I think their names on files were simply chosen for effect.



H/T Dan Katz

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