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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.

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.

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?

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.

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.

JUSTICE GINSBURG: Three?

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.

Yikes!

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 (66.153.19.162) 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