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From WSJ Law Blog (H/T Josh N.)

Justice Scalia gave an interview with CSPAN, and he had a few choice words about lawyers joining the legal profession.

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Devoting too many of our very best minds to the legal field, eh? Lawyers don’t produce anything, eh? Classic Scalia.

About two years ago, I wrote an article about Google Street View, and the potential privacy implications.

From Gizmodo (H/T John P.) Google Earth Will Track Cars and People In Real Time, Eventually Destroy Privacy – Realtime cars – Gizmodo.:

This is one of the awesomestest and scariestest technology demonstrations I’ve seen in a long while: Georgia Institute of Technology’s students are using CCTV video to map actual vehicles and people into Google Earth. Why is this scary?Right now, all the data displayed is anonymous, which makes up for a cool looking technology. You could see a football game in real time or the actual traffic in your route to work. Eventually, you will be able to see clouds moving, the weather changing, and even birds move in real time…

Imagine that someone is able to tag you in some way. In theory, it could be as easy as having access to one of the CCTV cameras and this system. You mark a car on the screen and, provided that you have enough cameras along the way, the technology would be able to follow the vehicle wherever it goes. In England, for example, this will be really easy to do, because there are CCTV cameras absolutely everywhere. And let’s not talk about RFID tags.

See the video below for details

[youtube=http://www.youtube.com/watch?v=TPk88soc2qw&feature=player_embedded#]

At the time, I wrote in my Omniveillance article (pp. 340-341):

Although the current version of Street View is limited to pre-recorded still photographs, future technology will allow real-time streaming video feeds of everything occurring in public . . . These omens ominously bear on the value of Street View, and create a scary image of what Google could do. Because there is no viable right to privacy in public, and because Google seeks to create a visual map of the planet, there is nothing preventing Google or any other company from installing such video cameras with tagging capabilities on the rooftops of private business throughout America. This vision of the future poses serious issues and conjures up an Orwellian nightmare…

If a live video feed of every action a person takes is recorded and broadcasted over the Internet, facial recognition technology … can be applied. The effect will be that the technology could instantly and automatically tag every person in a city. At any given moment, these cameras would know what stores a person goes to, what doctors a person visits, what activities a person engages in, and even if someone breaks the law. Currently, people who seek to stay out of the limelight can avoid using a computer, abstain from posting to blogs, and miss out on all of the fun of social networking. However, under this new regime, you can’t run; you can’t hide; there is no escape.

I really hate being right.

More after the jump.

(more…)

Thomas Ipsa Loquitur

[youtube=http://www.youtube.com/watch?v=PcNDNEdKmeE]

H/T Instapundit

I just started blogging, but I’ve already felt the cool feel of snark. What is snark? According to Urban Dictionary, the venerable source of web slang, snark is a combination of “snide” and “remark,”  or sarcastic remark.

From Professor Orin Kerr in the comment thread:

“I suppose if your views were on the other side, you would say that the Barnett cover focuses on just a very small part of the Constitution — it has only the preamble and the first few lines of Article I — while the Constitution in 2020 cover has the entire original Constitution on it.”

And from Professor Muller at Faculty Lounge

There’s an idiom that captures the essence of this post, but it eludes me,  just as it appears to have eluded Randy Barnett. (And Josh Blackman fails to note that the Balkin/Siegel tome is red.  Red!)

These comments are quite tame, and rather witty.

But, in anticipation for future, stronger snark, what are the outer bounds of permissible snark in the legal blogosphere? When is it too much? What are repercussions for crossing that line? And what is a good policy to replying in kind?

For example, while I am liveblogging the Constitution in 2020 conference, in the event a panelist mentions the text of the Constitution, would it be too snarky to issue a tweet reading “Constitution in 2020 LiveBlog Alert! Panelists Mentioned the Text of the Constitution.” Of course it is only in jest, and I only mean to poke fun at the fact that the actual book sparingly cites the text of the Constitution, but I don’t wish to cross the line.

To Tweet or Not to Tweet? That is the question.

This is something I’ve been thinking about since I learned the IJ way.

As you all probably know, the rational basis test is the lowest tier of scrutiny Courts apply to judge the constitutionality of governmental action. If the court can think of any explanation why a governmental action has a rational basis, no matter how absurd, even if it is different from the government’s proffered justification, the court will uphold the governmental action. Except in very few cases, like Craigmiles, under the rational basis, the Court provides no meaningful scrutiny whatsoever.  In this post, I am not discussing the policy justifications of why the rational basis is applied. Those are thoughts for another time. Rather, I just want to focus on what the court is actually doing.

One way to look at it, is to compare treatment of Lee Optical style rational basis review to a nonjusticiable political questions. If you look at what the court is doing, they are not actually judging, but in fact are leaving the determination to other branch. The question is, why bother calling it a test? There is no test. They definitively punt to the legislative branches. And this punt is so huge, it would definitely hit the new scoreboard at Cowboys Stadium.

If the courts are not willing to scrutinize an action, maybe the courts shouldrather abstain altogether, like they do with the political question doctrine. But perhaps, the courts need to fashion some test, however meaningless, to maintain the appearance of judicial legitimacy.

I’m working on an article on this point. Possible titles, “Why the rational basis test is not a test at all, but an abstention doctrine. ” Or maybe, “Drop the charade. Rational basis test as a political question.”

I’ll post some more musings along the way.