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Friday, September 28, 2007
More Cool Non-Law Blogs:
1. HogwartsProfessor.com. A very erudite blog run by Professor John Granger, who is so knowledgeable, hard-working, and good-hearted that he is undoubtedly a distant relative of Hermione Granger. Be sure to check out the blogroll too for more excellent Potter sites, especially the excellent Sword of Gryffindor.
2. The Anchoress. Musings on life, ethics (and sometimes current events) from an intelligent Roman Catholic perspective.
Bushism of the Day:
[My adversary] has abandoned all sense of fairness when it comes to justice.
Funny, no? Another example of the President's accidental wit and wisdom.
Whoops, sorry: That's from a written statement by Speaker Pelosi's office on July 2, condemning President Bush's commutation of Scooter Libby's sentence. The Bushism of the Day, from oral remarks by President Bush, is
All of us in America want there to be fairness when it comes to justice.
Neither, of course, is terribly eloquent, but neither is particularly laughable. The supposed humor, I take it, stems from the assumption that fairness and justice are synonyms, so the statement is supposedly tautological. But it's clear that "justice" in both quotes means not just "fairness" but "the operation of the justice system." (Bush was speaking of the Jena, Louisiana prosecutions.) Nothing particularly noteworthy, it seems to me, in someone's saying something like this, especially in an extemporaneous oral response to a question.
May Jewish Community Center Discriminate Based on Religion?
Title VII of the federal Civil Rights Act generally bars employers from discriminating based on religion, but exempts religious discrimination by any "religious corporation, association, educational institution, or society." Those terms, however, aren't precisely defined, and while they create plenty of black and white zones, there's also a good deal of gray area.
Leboon v. Lancaster Jewish Community Center Ass'n, a Third Circuit decision filed last week, explores this as to a Jewish Community Center; the Center had a substantial religious component to its activities, but was not under control of any particular synagogue or rabbinical organization. The two-judge majority said the Center was a religious organization covered by the exemption. One dissenter held the contrary, and would have read the statutory exemption as limited to "only those entities that ... are controlled by a religious sect."
Note that there's a separate doctrine, developed under the First Amendment, that allows discrimination based not only on religion but also race, sex, and the like, but that's limited to ministers and other employees with distinctively religious jobs. We're talking here about the categorical statutory exemption -- though only from the ban on discrimination based on religion -- of all employees of religious corporations, associations, educational institutions, or societies.
U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:
Here's the order, which is short on details, but which does say that Judge Kent's actions "violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." The details of the complaint are apparently to remain confidential.
The "appropriate remedial action" for the judge has apparently been a four-month leave of absence from the bench, plus unspecified "other measures." Recall that federal judges are generally protected from most job-related penalties, short of impeachment by the House and conviction by the Senate.
Kay Hymowitz's Response to Her Libertarian Critics:
Conservative writer Kay Hymowitz's critique of libertarianism, published in Commentary and the Wall Street Journal, has attracted a lot of critics of its own, including responses to some of her points by co-conspirator David Bernstein, and yours truly. My main criticism of Hymowitz's essay was that she falsely conflates libertarians' opposition to government regulation of personal choices with an indiscriminate embrace of 1960s style lifestyle excesses. Believing that Activity X should not be banned by the state does not entail a belief that X is unobjectionable. Now, Hymowitz has written a response to her critics. The response contains some welcome clarifications and concessions, but also perpetuates some of the shortcomings of the original article.
On the plus side, Hymowitz writes that she "strongly agree[s]" with my statement that the "harmful effects of private choices . . . are best dealt with through the private sector." She also admits that "libertarians are not libertines" and claims that some of her critics (possibly including me) misinterpreted her views when we portrayed her as equating libertarianism with near-total relativism about personal choices. To my mind, there is at the very least serious tension between Hymowitz's comments on this score in her new essay, and her claim in her original article that "the libertarian vision of personal morality . . . is not far removed from 'if it feels good, do it,' the cri de coeur of the [1960s] Aquarians." However, I'm willing to accept Hymowitz's assertion that her views have been misinterpreted.
If Hymowitz really does agree that the "harmful effects of private choices . . . are best dealt with through the private sector," then there really isn't much disagreement between her and most libertarians. Why, then, does she continue to attack libertarianism? If I interpret here correctly, it's because she thinks that "libertarians tend to see all criticism of personal behavior as a threat to liberty" and that "Libertarians believe government shouldn’t say anything about the family[breakdown] problem. And neither should anyone else."
As I tried to explain in my earlier post, it is simply not true that libertarians "tend to see all criticism of personal behavior as a threat to liberty." Most serious libertarian writers would agree that such criticism poses little danger so long as it isn't coupled with advocacy of using government coercion to "solve" the problem.
In practice, of course, much conservative criticism of personal behavior is combined with advocacy of coercive solutions, which helps explain libertarian suspicion of that criticism. Hymowitz attempts to sidestep this issue by saying that "[o]f those who view family breakdown as a major social problem, I don’t know any who argue that we should ban divorce and lock up single mothers." Perhaps so, but there are plenty of conservatives who advocate such policies as censorship of pornography and "obscene" speech, abolition or restriction of no fault divorce, bans on flag burning, and - worst of all - the War on Drugs, which has led to the imprisonment of hundreds of thousands of people for their nonviolent "personal behavior." Some prominent conservatives, such as Senator Rick Santorum, have argued that "pro-family" morals regulation is the most important conservative public policy objective, a goal to which individual liberty should be subordinated. Conservatives are by no means monolithic in their views on these issues, and it seems that Hymowitz is one of those who opposes such regulations. However, her view is far from being the dominant one in the conservative movement.
As for speaking out about the problem of family breakdown, libertarians not only don't oppose doing so, but have actually been arguing for forty years that family breakdown is in large part a consequence of harmful government policies, such as the perverse incentives created by the welfare system. There would be little point in this kind of libertarian criticism of the state if we actually believed that family breakdown is a good thing, or even a morally neutral one. Hymowitz herself implicitly admits this when she states that "I actually agree with libertarians that many government policies have greatly harmed the family." It is perhaps true that many libertarians dislike the idea of having the government speak on these issues. But if the government's activities in this area really were limited to mere speech (and conservatives embraced such limitations), they would not be a major bone of libertarian-conservative contention.
Hymowitz concludes her response by criticizing what she calls the libertarian "tendency to view individual personal liberty as The Good that should swallow up all others." In reply, I can only reiterate a point I made in my critique of her original essay: believing that protecting liberty is the highest or even the sole legitimate purpose of government does not require libertarians to conclude that it is the highest good for all institutions. Still less does it commit us to believing that it is a good that "swallows up all others." To the contrary, libertarians have long contended that liberty actually facilitates the achievement of other important values and does so far more effectively than government coercion.
Unconstitutional Restriction on Use of Fallen Soldiers' Names:
As I wrote in July, the newly-enacted Ariz. Rev. Stat. § 13-3726, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, provides: A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....
C. This section does not apply to the following:
1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.
2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.
3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.
4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.
5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.
6. A soldier's picture or portrait that is not facially identifiable.
7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.... The prohibited conduct is made a misdemeanor, and made civilly actionable.
In yesterday's Frazier v. Boomsma, a federal district court preliminarily enjoined the criminal prohibition on the grounds that it is likely to be unconstitutional; the reasoning suggests the accompanying civil liability provision is unconstitutional as well. The Court rightly held:
1. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt). Even the advertising for the T-shirts is fully protected, the court concluded, because it is advertising for fully protected speech, rather than just for a nonspeech product.
2. The T-shirts also don't fit within any "right of publicity" exception to the First Amendment. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.
3. The court also held that even if in some situations some speech may be restricted to protect grieving families of the recently dead, this would at most be allowed in a very narrow range of cases, and wouldn't cover every commercial use of the names of dead soldiers.
Thanks to Arizona State Prof. Jim Weinstein for the pointer.
Related Posts (on one page): - Unconstitutional Restriction on Use of Fallen Soldiers' Names:
- Unconstitutional Restriction on Use of Fallen Soldiers' Names?
Interesting Article on Labor Legislation in the Progressive Era:
I just read a very interesting article by Thomas C. Leonard, Protecting Family and Race: The Progressive Case for Regulating Women's Work, which appeared in the American Journal of Economics and Sociology in July 2005. If you're at all interested in Progressive Era economists' and reformers' attitudes toward working women, this article is a must read. More generally, Leonard, in this and other pieces, notes that many Progressive Era reformers supported "protective" labor legislation even though they knew that it would lead to unemployment, especially among women, immigrants, and African-Americans. Rather than being disturbed by this side effect of the legislation, many reformers argued that the disemployment caused to these groups was a social benefit, because it prevented "inferior" workers who were willing to accept low wages because of their low consumption from driving down wages for a white Anglo-Saxon Protestant male workers, who needed higher wages to support themselves and their families. This article can be usefully read in conjunction with my Michigan Law Review review essay, Lochner's Feminist Legacy.
UPDATE: Contrary to the tenor of the discussion in the comments, the point of this post has nothing to do with modern debates over labor regulation, much less "progressive" (small p) politics in general. I don't happen to believe that modern liberals are direct descendants of Progressive era reformers; if they were, for example, in law, Griswold, Roe, and Lawrence and Brown (!), for that matter, would have all come out the other way. But there is a tendency, reflected in posts from both sides in the comments, to read the current political spectrum backwards into a very different era, to assume that 1910s "Progressives" were more or less the same as modern "progressives." The overall Progressive ideology of the early 20th century was one that is basically defunct today, yet we still often see historical events through a Progressive lens. In my own area of academic interest, the Progressive era critiques of the Supreme Court's pre-New Deal jurisprudence still dominate many discussions of legal. Yet, for example, does anyone nowadays actually bemoan the demise of the National Industrial Recovery Act in the Schechter case?
Guestblogging Dictionary Myths (Pt 4):
It's (Mostly Harmless) Drudgery
If you know the word lexicographer, there's a better-than-even chance you also know Samuel Johnson's self-mocking definition of it: "a writer of dictionaries; a harmless drudge, that busies himself in tracing the original, and detailing the signification of words."
We should probably set aside, at least for now, discussion of whether or not lexicographers are harmless (at least, harmless when it comes to the language; I have a mean right hook), and instead turn to the 'drudgery' part -- is lexicography drudgery?
No. It's a complete myth. It's disinformation spread by lexicographers so we can keep other folks away from our wonderful jobs.
In my first paying lexicographical gig, way back in the twentieth century, I spent several weeks during which a sheet of transparent plastic, marked with the ghostly outline of a dictionary page, never left my hand. My job was to count the number of characters (including spaces) in the material being added to a page, then count the number of characters (including spaces) in the deletions that the editors had marked on that same page. I used the plastic sheet as an overlay to help me count. If the numbers matched, great! I could go on to the next page. If not, I had to flag it for the senior editors, who would then go back and make further revisions so that the material would be neither too long nor too short, but exactly right. If revisions were so long that the text had to reflow to the following page, that was an added expense, so the editors were highly motivated to work their changes within the page. And even that task, as weird as it sounds to people now firmly in the computer age, was more along the lines of a 3-D word jigsaw puzzle than drudgework.
The truth is that the drudgeworky parts of lexicography -- the counting, the alphabetizing, the sorting -- have now been farmed out to tireless computers, and the lexicographer is left with the fun parts -- the planning of projects, the actual writing and defining, and the arguing. That work is endlessly diverting.
There's a quote about lexicography from J.R. Hulbert (who worked on the great Dictionary of American English) I haul out whenever I can, because it's so apt:
I know of no more enjoyable intellectual activity than working on a dictionary. Unlike most research, lexicography rarely sends one in fruitless quests; one does not devote days, months, or even years to testing an hypothesis only to decide that it is not tenable, or to attempting to collect evidence to prove a theory only to have to conclude that sufficient facts are no longer in existence to clinch it. It does not make one's life anxious, nor build up hopes only to have them collapse. Every day one is confronted by new problems, usually small but absorbingly interesting; at the end of the day one feels healthily tired, but content in the thought that one has accomplished something and advanced the whole work towards its completion.
That's the beautiful thing about lexicography: it's important, and you work hard to make the best dictionaries you can, but it's not (as the joke goes) rocket surgery: the odds of someone dying because there's a typo in an entry are very, very low. There might be ridiculous deadlines, and budgets that wouldn't allow for the publication of a suburban high-school yearbook, and occasionally, the sinking feeling that you have overlooked something very important (but you can't remember what it is), but at the most basic level, at the level of the word, the definition, the phrase, the work is almost exquisitely satisfying. The lexicographer, more than anyone else, can see the underlying network that both connects and distinguishes the words of English, and gets a perspective on language that would be difficult to achieve from any other vantage point.
In fact, I think Johnson might have been the first to try to misdirect people away from lexicography by pretending it wasn't fun. I believe Johnson (as depressed, as sick, as beaten-down as he often was, and if you haven't read Paul Fussell's Samuel Johnson and the Life of Writing, well, you should) felt the same exaltation, the same endorphin hit, of pinning down the right 'signification' of a word. That 'aha!' moment in lexicography is almost endlessly reproducible; there's always the next word, and the next, and the next ... All I know is that I am eager to get to work every day.
I think I had half-promised to write something today about norms in English (and what is a 'rule' of English and what is just a suggested serving recommendation, the confusion, ironically enough, lying in the word rule) but that might be beyond the scope of a series on dictionary myths -- I'll try to write about it next week at my usual hangout, Dictionary Evangelist. (It's not quite the kind of topic I usually wrangle over at A Dress A Day.)
I wanted to end this week by thanking Eugene for his kind invitation to guest-blog, and with gratitude to you all for your trenchant comments. (There's nothing like blogging for an audience of lawyers to help you improve your arguments!) Thank you!
Foul Winds for Alternative Energy:
Renewable energy sources offer many potential environmental benefits, including the reduction of air pollution, carbon emissions, and other consequences of energy extraction and production. To date, however, many renewable energy sources have had difficulty breaking into energy production markets. Despite decades of federal subsidies and other support, it often remains difficult to offer renewable energy at a competitive rate.
Many argue that the best way to promote renewable energy sources, such as wind power, is to offer yet more federal subsidies, tax incentives, and the like. In this article on NRO — another contribution to NRO's "Energy Week" — I suggest a different tack: Reducing regulatory obstacles to alternative energy projects. One of the largest hurdles for major wind projects, for example, are regulatory requirements that increase costs, induce delays, and offer NIMBY activists opportunity to strangle such projects in the crib. Though well-intentioned, some of the regulatory requirements imposed on wind, wave, and other power projects have the effect of stalling the advance of alternative energy technologies. I conclude: Alternative energy advocates often bemoan the lack of a “level playing field” for renewable energy, recommending additional federal subsidies as the solution. Yet renewable energy sources already receive generous financial support from the Department of Energy and other government sources. In practice, such funding does little to bring commercially viable facilities on line.
To promote alternative energy development, there’s no need for more handouts. Instead the government should get out of the way. If the goal is to increase actual alternative energy production, and increase the proportion of renewable energy that supplies electricity to American consumers, the best thing the federal government can do is reduce or remove regulatory obstacles to energy entrepreneurship and innovation. If renewable energies are to capture a sizable share of the energy market, what they need, more than anything else, is regulatory room to compete.
UPDATE: Well, it did not take long for me to receive hate mail for this article. A representative of the Industrial Wind Action Group, an anti-wind power organization, has already e-mailed to say my article is "uninformed babble" consisting of "easy recitations borrowed from the renewables industry." Given my criticism here and elsewhere of federal renewable energy subsidies, I am sure that the renewables industry has a different take.
Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta:
On October 9, the Supreme Court is will hear what is likely the most important securities law case in years: Stoneridge Investment Partners v. Scientific Atlanta. In this case, the Court will consider whether primary liability under Section 10(b) of the Securities Exchange Act extends to third-parties, such as auditors, attorneys, or vendors, who engage in allegedly fraudulent transactions with a public corporation. In a prior case the Court held that there is no aider or abettor liability under Section 10(b), but some courts have held (and academics have argued) that this leaves open the question of whether third parties could still be liable to a company's shareholders under a theory of "scheme liability." So, for example, when, if ever, should Enron's shareholders be able to sue other companies for allegedly engaging in fraudulent transactions with Enron that inflated Enron's earnings? It is an interesting and important question.
Next Friday, the Center for Business Law & Regulation at the Case Western Reserve University School of Law and the Federalist Society's Corporate Law practice group are co-sponsoring a preview of the case: "Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta." The event is free and open to the public. (3.5 hours of Ohio CLE are also available for a modest charge.) For those who can't make it, the entire event will be webcast. Details here.
Related Posts (on one page): - Stoneridge Roundup:
- Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta:
Thursday, September 27, 2007
Cert Pool Memos from 1986 to 1994 Now Online:
Are you curious about what Supreme Court "cert pool" memos look like? Do you have a favorite former clerk whose pool memos you have always wanted to read? Did you file a cert petition 20 years ago that you still feel was wrongly denied, and do you want to know why? Do you want to read snarky annotations from Blackmun clerks about pool memos written by conservative clerks? Now, thanks to lawprof Lee Epstein, you can read as many cert pool memos as you want from the Blackmun archives, covering 1986 to 1994, all in .pdf format. Serious Supreme Court geeks will get a kick out of this, in part because many of the pool memo authors are now familiar names. For example, in the October Term 1993 files you'll find pool memos from co-bloggers Eugene and David P., Solicitor General Paul Clement, DC Circuit Judge Brett Kavanaugh, 10th Circuit Judge Neil Gorsuch, and several other big wigs. Thanks to How Appealing for the link.
Freedomnomics:
I just finished reading John Lott's marvelous and entertaining book Freedomnomics: Why the Free Market Works and Other Half-Baked Theories Don't. It is very well-written and it really reminds you of what an extraordinarily creative and interesting thinker Lott is. Much of the book is a translation of his many papers in different areas into prose and concepts accessible to general readers.
Peter Boettke, in the GMU Economics Department, is fond of observing that there are two places where you can find economics problems--by looking at the blackboard (theory) or looking out the window (the real world). What makes Lott such an interesting thinker to me is that he has a great knack for looking out the window for interesting problems and then coming up with original ways of thinking about them.
When I teach law & economics, one of the key puzzles I start with is Akerlof's "lemons theory." But the real question about the lemons theory, it seems to me, is why if it seems so theoretically sound, why don't we actually see it more often in the real world? The answer, of course, is that there are a host of institutions that arise to address the lemons problem so that people can actually engage in trade, most obviously contract law, but other institutions such as reputations, repeat dealing, etc. Gordon Tullock similarly posed the question long ago about why there is so much stability in legislatures when theory seems to predict a much higher rate of cycling than is actually observed.
Lott's book strikes a similar balance with Freakonomics. Now let me emphasize that I really enjoyed Freakonomics and thought it a very interesting and provocative book. Lott picks up on the point, however, that Freakonomics sometimes only seems to tell part of the story--in the same way that it would be a mistake to simply read Akerlof and assume that was the end of the story. Lott shows how formal and informal institutions arise that discipline much of the cheating and inefficiencies of the market that might otherwise prevail. He also does a very good job of providing an argument for why it is that certain market practices that may seem irrational (such as price mark-ups on liquor in restaurants) may actually have a sound economic logic to them. Even if one isn't persuaded on some of these points, the arguments are logical and fun to read.
Probably the most interesting chapter to VC readers would be his central chapter on the law & economics of crime. This is one of the best overviews and literature reviews that I have read on the topic, both as to how to think about an economic analysis of crime as well as empirical work on the subject. His primary focus in the dramatic decline in crime rates in the 1990s and discusses the various theories that have been advanced to explain it. This chapter seemed to me to be extremely strong and touched on a lot of key issues--guns, capital punishment, etc. He also summarizes his critiques of Donahue and Levitt's argument that legalized abortion generated a drop in the crime rate. The debate on this issue continues. It struck me more generally that for criminal law professors who wanted to introduce their students to the economic analysis of criminal law, Lott's chapter provides an accessible and wide-ranging discussion of the issue that potentially would be a great teaching tool.
Overall, I thought this was a really fun and interesting book, one of those ones that has you saying every page or two "Hmm, I didn't know that" or "I never thought of it that way." For those who like this general genre of economic puzzle-solving (which I do), I highly recommend it.
Cool Blogs -- Outside Law, Public Policy, and Politics:
A few of my cobloggers and I decided to pitch some of our favorite non-law, non-public-policy, non-politics blogs. Here are two that I highly recommend:
1. GeekPress, mostly cool science and technology stories. A sample, from the current front page -- go to the site itself for links:
"The top 10 hand gestures you'd better get right". (Via GMSV.)
posted by Paul @ 12:03 AM
If you stand far enough away from this image you will see the Mona Lisa. (Via BBspot.)
posted by Paul @ 12:02 AM
The politics of time zones. (Via SciTechDaily.)
posted by Paul @ 12:01 AM
Wednesday, September 26, 2007
Positive review of tonight's premier of Bionic Woman.
posted by Paul @ 12:12 PM
"The Man Who Saved the World by Doing... Nothing" ...
(As you can tell, law, public policy, and politics infects even GeekPress, but still it's mostly science and tech stuff.)
2. Language Log, which, as you might guess, is about language and is written by linguists. An excerpt can't do it justice -- go there and take a look. Related Posts (on one page): - Still More Cool Non-Law Blogs:
- More Cool Non-Law Blogs:
- Cool Blogs -- Outside Law, Public Policy, and Politics:
There Can Be No Doubt That This Is Bush Derangement Syndrome:
"George Bush is a time traveler, conspired with Duke of Normandy at Battle of Hastings 1066 A.D. to pervert the English Dictonary and Law. Admiral / Maritime Jurisdiction is hearing my complaint. The american flag is M.I.A. held hostage at FEMA camps.
"George W. Bush is the grand Iman of voodoo with doctors turning humans to animals, sometimes plants....
"Trading with Enemy Act of October 6th, 1917, yet George W. Bush and Defendants secretly sell inmates DNA on the international stock market including, but not limited to: HITLER'S SOCIALIST PARTY, GUERILLA ASIAN MOVEMENT, and on 3 occations the NIGERIAN JUNJAWEED'S."
To be fair, it's pretty clear that the derangement didn't stem just from Bush. Other defendants include the Queen of England, Kofi Annaan [sic], Tony Danza, Paris Hilton, John Grisham, Charlie Sheen, and many others. How much damage was inflicted? Glad you asked — "Plaintiff seeks 379,111,339,000,000.00 Trillion dollars backed by gold or silver delivered by United Parcel Service 'UPS' to Federal correctional Institution Williamsburg, Salters South Carolina." No word on where the gold or silver needed to back a third of an octillion dollars would come from, or where it would be put.
Thanks to Nate Lowenstein, Dan Lowenstein, and Chris Newman for the pointer.
Chelsea Clinton's Photo on Restaurant Wall:
People have been talking about this story:
The owner of a New York City restaurant is “heartbroken” over a letter he received from former President Bill Clinton's lawyer asking that a photograph of daughter Chelsea be removed from his eatery -— or face legal action.
The photo, taken of the former first daughter with Osso Buco owner Nino Selimaj, has been on display in the window of the Greenwich Village haunt for about five years, the restaurateur said. It was snapped when Chelsea, now 27, was having dinner there with a group of about 30 friends.
But Selimaj said he was shocked when he received a letter from Clinton’s lawyer Douglas J. Band on Sept. 18 threatening legal action if the photograph of “private citizen” Chelsea was not taken down. The photograph is still on display near the front entrance of the restaurant -— only now, the letter is posted alongside it.
“We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton,” the letter warns. “We reserve the right to exercise any and all options available to us if you refuse to comply.” ...
Here's the quickie legal analysis:
1. The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."
2. Courts have generally held (and rightly so) that such rights of publicity usually don't block the use of names and likeness in newspaper articles, books, novels, movies, and the like, even though such uses may be for profit and distributed in commerce; the right tends to be limited, largely for First Amendment reasons, to advertising and merchandising (such as T-shirts, coffee mugs, and the like). But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech" (a First Amendment term of art that refers mostly to advertising and similar promotion, not to speech such as a book or a newspaper that is sold in commerce). And while such "commercial speech" is considerably protected by the First Amendment, it's less protected than newspapers, books, and the like. The right of publicity, as applied to such speech, is quite likely constitutional.
3. All this is true, generally speaking, whether Chelsea is treated as a public figure or a private one. That distinction is important for libel cases, but generally not for right of publicity cases (though the damages may differ depending on the market value of the plaintiff's image).
4. As I noted above, New York law — unlike the law in many other states — provides that consent to use one's name or likeness for advertising or trade must be given in writing. This means that even if Chelsea willingly posed for the picture, knowing that the restaurant was taking it to be posted on the wall (far from clear), that's not enough; for the restaurant's use to be legal, there has to be a written permission from her.
5. The one possible defense the restaurant might have is the statute of limitations: In New York, Chelsea would have to sue within one year of learning that the restaurant was displaying the picture; I don't know when that was. (My sense is that the statute would also start running when a reasonable person would have learned that the picture was being displayed — but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.)
6. Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect. A restaurant owner should have more respect for the wishes of his patrons; he's gotten five years of free publicity out of Chelsea's visit, and it doesn't seem right to me for him to insist on getting more after Chelsea asks — for whatever reason — that he stop. Conversely, if the first request to the restaurant was the letter, rather than a polite request by Chelsea (I have no idea whether that's so, though Ann Althouse suggests that it might have been), that too sounds a bit rude. On the other hand, if a first request was politely rebuffed, I don't see anything improper about the letter; it seems like a pretty normal nastygram, and one that is reasonably warranted by the facts as they appear.
D.C. Circuit Rejects Second Amendment Plaintiff's Motion to Immediately Enjoin Operation of D.C. Rifle/Shotgun Restrictions:
Appellants’ contention is that appellees’ petition for certiorari concedes the
unconstitutionality of D.C. Code Section 7-2507.02 as it requires the disassembling of
shotguns and rifles or the placement of trigger locks, making such arms practically useless for self defense. Therefore, appellants argue, our mandate holding this provision
unconstitutional should issue. But our opinion does not specifically address the
constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller -– the denial of a license. Id. To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing.
In any event, the District’s petition for certiorari makes an alternative argument not
presented in our court -– that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument -– and conclude it was constitutional to ban handguns in the
home if long guns were permitted -– would necessarily be obliged to consider the impact
of Section 7-2507.02, since a disassembly or trigger lock requirement might render a
shotgun or rifle virtually useless to face an unexpected threat.[3]
[Footnote 3:] The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces -–
particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense.
Judge Henderson, who dissented from the invalidation of the handgun ban, concurred in the denial of the motion, but did not join the rest of the order.
Guestblogging Dictionary Myths (Pt 3):
"That's Not A Word!"
One of the things that happens to you all the time when you're a lexicographer is that people say something to you, something perfectly reasonable, such as "I am appalled by the current celebrification of journalists" and then stop themselves to ask you "Is that a word?"
Considering that the is-it-a-word? word is usually completely comprehensible, I always say "it is now!"
When people say something "isn't a word", they aren't usually saying that the item in question is a piece of rotten fruit, or a shoe, or a phone number, or some other non-lexical object. What they are saying is something like "That's not standard English," or "I dislike that word and wish you wouldn't use it," or "I am not sure that this word is in common use," and so on. They may also want to call attention, obliquely, to the word as being their own coinage (whether or not that is true).
The ruler most people use to measure a word's word-ness is The Dictionary. Not any specific dictionary -- for most people, if a word is in any standard-looking dictionary, that's good enough. (The Dictionary is a stand in for "Any Dictionary I Happen To Have.")
But as a lexicographer, as someone who has seen how the word sausage is made, I think that assessing a word's fitness for use by whether or not it is in The Dictionary is much too limiting. We've already seen that lexicographers can't possibly register, much less describe, all the words that are used in English; how then, knowing that, can you still cleave to the idea that the words that are in The Dictionary are good to use, and the ones that aren't, aren't?
People use The Dictionary as the arbiter of a word's worth because they are understandably lazy. They want to make a quick appeal to an incontrovertible authority, win their argument (or their game of Scrabble) and get on with their day. Using The Dictionary this way probably worked a lot better in the pre-Google age, but when you can fire up your search engine and find 20,000 hits for celebrification, it's a bit harder to argue that it "isn't real."
Don't get me wrong: celebrification may still be ugly, it may still be awkward, it may be better expressed by a paraphrase and not by a single (possibly over-suffixed word), but it's real, all right, and an argument against its use based on "it's not a real word, because it's not in the dictionary" is an argument you're eventually going to lose. Anything that's used as a word, understood as a word, and that works like a word -- is an actual, living, breathing, honest-to-goodness word. Full stop.
Sometimes people use "that's not a real word" to mean "that's a mistake" -- that something is a misspelling, or is used incorrectly, based on traditional use. The "it's not in the dictionary" argument doesn't work there, either. The Encarta dictionary famously listed common misspellings, right in the A-Z, with cross-references to the more common spellings. A facetious argument could then be made that those misspellings are "in the dictionary," and I wouldn't bet that some eighth-grader, somewhere, didn't try it. Dictionaries should list common meanings, even if they are considered errors by traditionalists (but they should also give a warning to that effect). Ignoring a problem never yet made it go away.
But while we're talking about errors and mistakes, I'm not sure if anyone can announce with certainty just when an error, made by enough people over a long enough period of time, becomes the standard. I think that it takes at least three generations, and that it has to be something obscure enough that it can pass unnoticed by all but the most conscientious of copyeditors. For instance, even though confusing your and you're is certainly widespread, I don't see those two words become conflated any time soon -- enough people still know and maintain the difference. But other terms, words we don't use as often or as surely, can sneak by while we're looking the other way (one that Ben Zimmer pointed out recently is minuscule as miniscule).
Whenever a lexicographer starts discussing the natural tendency of words to mutate and transform, of not-words to become words, a great howl arises. It's only natural that people who have taken the trouble to internalize standard English and use it in generally accepted ways would be upset when others don't take that same trouble -- or even, it as it sometimes seems, any trouble at all. But the plain truth is that language changes, drifts, and evolves -- transmutes, even -- and it's very, very difficult to stop it from doing so.
If language change really annoys you, to the point where you find it no longer possible to enjoy your normal daily activities, you should become a copyeditor, and then you will have the exquisite privilege of fixing the usages that annoy you all day long. Otherwise, if a new usage bothers you, I can only say, "don't use it, then."
The Dictionary is no longer the be-all and end-all of wordosity. If you want to be an educated word consumer, you'll have to do a little more work than just checking for in-or-out-ness. If your real question is "should I use this word or not?" you'll probably have to do a little bit more analysis. Who is your audience? What is their reaction to an unusual word likely to be? Would a more standard alternative make for a smoother communication of your message, or do you want and need the jolt that a new and striking term will give your listeners and readers? Will your new word be annoying (and if so, do you wish to annoy)? Or will it be playful and add a necessary shot of attitude?
Words aren't like Bigfoot: a moment's glimpse of a fabled creature isn't sufficient proof for cryptozoology. But just one momentary use is perfectly fine for determining whether or not a word is "real." The big question is what you can do with it, not whether it exists in the first place.
My Analysis of the Oregon FISA Decision:
Yesterday, Judge Aiken of the U.S. District Court in Oregon handed down a decision that strikes down Foreign Intelligence Surveillance Act's provisions for granting warrants. In this post, I wanted to explain the issue in the case and the decision's reasoning, and then I wanted to offer some commentary on the decision. My tentative bottom line: I found Judge Aiken's decision unpersuasive on the question of Article III standing. On the merits of the Fourth Amendment issue, I think the law is just too murky to call this one way or the other: Judge Aiken's result appears plausible, although so does the contrary result embraced in 2002 by the Foreign Intelligence Court of Review. 1. Statutory Background First, some background. The Foreign Intelligence Surveillance Act is the law the government uses to get warrants to monitor suspects terrorists and spies inside the United States. Before the Patriot Act, the government could obtain a FISA warrant to search or monitor someone based on a probable cause showing that the person "is a foreign power or an agent of a foreign power and that the primary purpose of the surveillance is to obtain foreign intelligence information." The basic idea was that the government had to believe the person was a spy or terrorist (an agent of a foreign power) and that the real reason behind the evidence collection had to be to to protect national security by having the information (that is, so the government can know what the spies and terrorists are doing). The Patriot Act changed that standard, and it's those changes that are the issue in the new case. The Patriot Act changed the language so that the standard for obtaining a evidence is probable cause showing that the person "is a foreign power or an agent of a foreign power and that a significant purpose of the surveillance is to obtain foreign intelligence information." The difference is subtle: the change from "the primary" to "a significant." Why the change? The basic idea is to allow the government can get a warrant to monitor spies and terrorists without knowing ahead of time whether it wants to just collect information and keep it or whether it wants to bring a criminal prosecution. Before the Patriot Act, the government had to choose at the beginning whether to take the criminal law route with traditional warrants (based on probable cause that the search would reveal evidence of a crime) or whether to take the FISA route and collect evidence to learn of terrorist plans without thinking about a possible criminal prosecution. After the Patriot Act, the government can get a FISA warrant in a terrorism investigation and keep open whether it wants to treat the case as a crimal case or an intelligence case. The intelligence information can go to the intelligence agencies, and the evidence of crime can go to the criminal investigators. The Fourth Amendment issue raised in the Mayfield case is whether a warrant issued under the amended Patriot Act standard is good enough for Fourth Amendment purposes or whether it is too "loose" a standard to make FISA searches constitutionally reasonable.
2. The Mayfield Case This case is a civil lawsuit by Brandon Mayfield, an Oregon attorney who was surveilled and lated arrested and detained for two weeks as part of an investigation into the 2004 Madrid train bombings. It turned out that Mayfield had nothing whatsoever to do with the bombings, and he was released. After he was released, he sued the government on a range of claims. The only issue left at this stage of the game is Mayfield's Fourth Amendment claim. Mayfield's Fourth Amendment claim is somewhat unusual. He does not argue that the government violated FISA when it obtained orders to monitor him and search his home. Nor does he argued that his particular Fourth Amendment rights were violated in an as applied manner, the usual argument in Fourth Amendment cases. Rather, he argues that the Patriot Act amendments to the Foreign Intelligence Surveillance Act made FISA warrants constitutionally inadequate as facial matter, such that the FISA warrants that were used to authorize surveillance of him were unlawful. This particular opinion concerns Mayfield's request for declaratory judgment that the Patriot Act amendments to FISA are constitutionally inadequate under the Fourth Amendment. Judge Aiken granted the request, and struck down what is really the heart of FISA — the provisions allowing the FISA court to issue search warrants both for physical searches and for electronic surveillance. There were two main issues in the opinion: First, did Mayfield have standing under Article III to bring the case, and second, did the FISA law actually violate the Fourth Amendment. a) Standing Judge Aiken ruled that Mayfield did have standing to challenge the facial constitutionality of FISA because the government retained derivative evidence from the wiretapping against him. That is, the government still had in its files records of items that had been collected from him. According to Judge Aiken, this continuing possession of information in their files established an ongoing injury in fact. Further, the injury in fact would be cured if Mayfield won the case, Judge Aiken ruled: "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." According to Judge Aiken, the government's possession of derivative evidence and the possibility they would be destroyed if Mayfield won conferred Article III standing. b) The Fourth Amendment Judge Aiken then reaches the merits, and concludes that the Fourth Amendment does not permit the government to obtain warrants based on probable cause to believe that a person is an agent of a foreign power if foreign intelligence collection is only a significant purpose of the monitoring. This standard lets the government search the homes and listen in on the calls of terrorist suspects and spies when the government is planning on bringing a criminal prosecution in the case. But that's not good enough, Judge Aiken concludes: If the government is really approaching an investigation of a terrorist suspect or spy with an eye to charging them with a crime, they need to follow the traditional criminal law standard for a warrant. That is, they need to obtain a warrant under the standard of probable cause to believe a crime was committed, not probable cause to believe the person is a terrorist or a spy. Judge Aiken notes that her conclusion is contrary to the legal ruling of the Foreign Intelligence Surveillance Court of Review decision in In Re Sealed Case. She concludes that In re Sealed Case is incorrect, and that the FISCR's analysis is unpersuasive. Because the current version of FISA adopts the Patriot Act standard, the provisions of FISA that authorize FISA warrants to be issued are invalid.
3. My Take There are two issues here, standing and the Fourth Amendment. I am no standing expert, but Judge Aiken's analysis of standing and ripness seemed quite weak and unpersuasive to me. On the other hand, I thought her Fourth Amendment analysis was plausible on existing precedents but that the issue was too murky to call one way or the other. a) Standing I find myself puzzled by Judge Aiken's view that Mayfield has standing to bring a facial challenge to FISA because the government apparently coninues to possess "derivative evidence" of the earlier FISA searches. As I understand it, the claim is that there are government agencies that still have files on Mayfield that contain information about the monitoring and searching of him. I'm not a standing expert, but I don't understand why that could be a continuing injury in fact: what is the "concrete" and "particularized" injury to Mayfield if somewhere there is a file that has information about him? Under Judge Aiken's approach, it would seem that everyone who was investigated in the past has ongoing injury in fact: Investigators keep files, and those files say what the investigators learned. Does the fact that somewhere some government computer has a record create an ongoing, concrete, and particularized injury in fact? I find this unlikely. (As an aside, I wonder how this applies to human memory. If an agent remembers what he saw inside Mayfield's house, does the presence of that memory, stored as a network of neurons in the "computer" of the agent's mind, create an ongoing injury in fact?) I was particularly unpersuaded by Judge Aiken's conclusion that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision," as required for standing by Lujan. Judge Aiken's theory here is obviously speculative: she hypothesizes that "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." But why? I don't think I have ever heard of "purge of the files" as a Fourth Amendment remedy. True, Rule 41 of the Federal Rules of Criminal Procedure permits a suspect to file a motion for return of property unlawfully seized by a warrant search; if granted, the remedy is return of the property. But I don't think I have ever heard of the government actually purging its files of all evidence or derivative evidence from a search — every report, every mention, etc. The standard available remedies in Fourth Amendment cases are suppression of evidence and civil damages: Is there now some kind of Constitutional requirement that all data collected has to be deleted, as well? Perhaps legislatures or courts should create such a requirement — very interesting question, I think — but Judge Aiken's expectation that the government would sort of "do the right thing" and delete the files struck me as precisely the kind of speculation that does not satisfy Article III standing requirements. b) The Fourth Amendment The Fourth Amendment issues here are trickier, I think. My tentative bottom line is that this issue is just really murky and there is no clearly correct answer: reasonable minds can differ. Why do I think that? The problem is the fundamental murkiness of the U.S. Supreme Court's decision in the Keith case in 1972. It's one of these early 70s Powell opinions that leaves you scratching your head as to what it means. (Powell had just become a Judge, and I think his early opinions in particular reflect him struggling with the craft.) In that case, the U.S. Supreme Court held that if the government wants to wiretap members of a purely domestic group for national security reasons — that is, a group unrelated to any foreign power — it needs a warrant but the warrant doesn't need to be a traditional criminal law warrant. Some kind of "reasonable" warrant procedure was enough. [W]e do not hold that the same type of standards and procedures prescribed [in criminal cases under the Wiretap Act, known as "Title III"] are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.
. . . It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518. The FISA statute is dealing with a slightly different issue: It is dealing with warrants for "foreign" intelligence collection, not "domestic" intelligence collection, the issue in the Keith case. The U.S. Supreme Court has never decided whether some kind of warrant is needed for the collection of foreign intelligence collection, and if so, what kind of warrant is needed. There are some pre-FISA circuit court precedents that allow totally warrantless monitoring in some circumstances, but they don't address the constitutionality of the FISA standard under Keith. But you can see the murkiness of the issue: According to Justice Powell's reasoning in Keith, the government needs to chose a legal standard that is "reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection." That doesn't give us much guidance at all, so it's not too surprising that you would have disagreement as to whether the Patriot Act's standard is permitted. The Foreign Intelligence Court of Review reached one conclusion; Judge Aiken reached another; and I don't think the existing legal materials really give us very firm guidance as to which of those decisions is more correct under existing law. I did find some of the characterizations of the FISA law in Judge Aiken's decision to be incorrect, but I think there's room in the cases to come out the way she does. I should say that as a matter of policy, I think the Patriot Act amendment to FISA is a good idea. If the government can establish probable cause to believe someone is a terrorist or a spy possessing foreign intelligence information, that should be enough to monitor them; allowing the government to then use the evidence to prosecute the terrorist or spy in a criminal case seems sensible to me. Indeed, there is an apparent irony in this entire topic: Here the government actually wants to use the criminal court system in terrorism cases, which is usually seen among civil libertarians as a positive thing. Forcing the government to conduct monitoring entirely outside the criminal court system seems unnecessary and unwise to me. Nor am I particularly persuaded that this is "watering down" the traditional Fourth Amendment warrant process. First, the government still needs to establish probable cause to a federal judge that someone is a terrorist or a spy with foreign intelligence information; that's not exactly a low standard, as the FISCR properly recognized. It seems unlikely to me that the government would seek to circumvent the traditional Fourth Amendment standard of pc that a person committed a crime (however minor) simply by establishing pc that a person was a terrorist or a spy; if that's an easier threshold to meet, it's not clear to me why. Second, the Keith case that first held that there was a warrant requirement at least in domestic intelligence cases was also quick to say that it wasn't the same warrant requirement as applies in criminal cases. So if there was a watering down, it was in the same Keith case that first imposed warrant requirement in the first place. Anyway, that's how I tend to approach the policy question (although I take it as a given that my answer to the policy question isn't relevant to the issue of whether Judge Aiken's decision is right or wrong as a matter of Constitutional law-- except to the extent it would inform how I personally might balance reasonableness if I were the one wearing the robe, which obviously I'm not). The government will no doubt appeal, so we'll have to see what happens next. I'm guessing the Ninth Circuit will reverse on standing, but that prediction is heavily dependent on the panel this case happens to draw. And finally, I should emphasize that my analysis is tentative; I'm offering my instant reaction, but I don't claim to have all the answers. If you disagree with my take, I would greatly appreciate you calmly and carefully explaining why I am wrong and the basis for your disagreement; that way I can understand my error and correct the post.
ID Documentary Deception:
In early 2008, Premise films will release Expelled: No Intelligence Allowed, a documentary film featuring Ben Stein arguing that those who believe in "Intelligent Design" face persecution in the academy and scientific institutions. For the movie, the producers arranged interviews with prominent scientists who point out that ID is not a scientific theory or who argue against a belief in God. Yet according to this NYT story, the film producers explained they were with a different production company and making a movie about the intersection of faith and belief, rather than about the alleged persecution of ID proponents.
Dr. [Richard] Dawkins and other scientists who agreed to be interviewed say they are surprised — and in some cases, angered — to find themselves not in “Crossroads” but in a film with a new name and one that makes the case for intelligent design, an ideological cousin of creationism. The film, “Expelled: No Intelligence Allowed,” also has a different producer, Premise Media.
The film is described in its online trailer as “a startling revelation that freedom of thought and freedom of inquiry have been expelled from publicly-funded high schools, universities and research institutions.” According to its Web site, the film asserts that people in academia who see evidence of a supernatural intelligence in biological processes have unfairly lost their jobs, been denied tenure or suffered other penalties as part of a scientific conspiracy to keep God out of the nation’s laboratories and classrooms.
The producers claim there was nothing sneaky or nefarious involved, just a routine change in the working title of a film. Yet for the reasons detailed in this PZ Myers post, that explanation seems a little thin. I don't think anything illegal occurred — and journalists often engage in some deception when seeking interviews — so it seems to me the producers should just own up to what they did.
UPDATE: Ron Bailey on "The Shame of Ben Stein."
Regulatory Sclerosis in Energy Markets:
It is still "Energy Week" on NRO. Among today's articles is this piece by my former colleague Andrew Morriss on the regulatory sclerosis afflicting energy markets. His bottom line:
On the rare occasions when energy markets have been allowed to work relatively unimpeded by political efforts to serve special interests, market forces and private enterprise have delivered dramatic improvements in energy. Competition, not government tax breaks, drove the “octane race” of 1930’s that boosted gasoline quality. Market forces, not government regulations, led some U.S. oil companies to lead the world in the development of the tanker fleets, oil terminals, and exploration rights around the world that brought America falling energy prices throughout the 1950’s and fueled the post-World War II boom in automobile travel. Companies seeking an advantage in sales, not bureaucrats, drove the development of retail innovations, from clean service station restrooms, to today’s pay-at-the-pump technology. Improved blends of gasoline for high altitudes and cold weather came from entrepreneurs, not regulators. If we unleash the power of markets and entrepreneurs on our energy problems, American consumers can count on economical, safe, and reliable energy supplies. If we let politicians in Washington and state capitols force feed our energy markets more “regulatory cholesterol,” we face a future of rising energy prices, shortages, and an increasingly unreliable infrastructure.
My Yale Law Journal Pocket Part Essay on Regulatory Takings and the Poor:
The editors of the Yale Law Journal Pocket Part asked me to write a short reply to Hannah Jacobs Wiseman's article arguing that laws requiring the government to compensate property owners for regulatory takings will hurt the poor. In my contribution to the debate, I argue that regulatory takings reform is unlikely to hurt poor communities, and might actually benefit them by impeding the enactment of regulations that harm the poor for the benefit of more affluent interest groups. Here's a brief excerpt:
Does requiring government to pay compensation for regulatory takings harm poor communities? My answer to this underanalyzed question is “probably not.” Because of the relative political weakness of the poor, unfettered government regulatory authority is likely to be used to their detriment more often than to benefit them. History shows that unconstrained government power to abrogate property rights has caused great harm to the poor.
The issue of regulatory takings reform is distinct from, but related to, post-Kelo eminent domain reform. The former seeks to force government to compensate property owners in certain cases where their property rights have been restricted by regulation - treating such regulations as takings, but allowing them to go forward so long as compensation is paid. The latter seeks to prevent certain types of takings entirely. In this Northwestern University Law Review article, I criticized claims that post-Kelo reform is bad for the poor.
Wednesday, September 26, 2007
District Court Judge Invalidates Part of FISA:
District Judge Ann Aiken of the United States District Court in Oregon has just handed down a surprising opinion striking down parts of the Foreign Intelligence Surveillance Act, and specifically 50 U.S.C. §§ 1804 and 1823, as facially unconstitutional under the Fourth Amendment. The opinion is here; I just printed it out and will be blogging a reaction shortly. Thanks to Eric Freedman for the tip.
Help Wanted:
The Republic of Palau recently posted this interesting job listing (hat tip: University of Missouri lawprof Danny Sokol):
Description:
The Supreme Court of the Republic of Palau is seeking an Associate Justice to preside over trial and appellate proceedings. Palau, a small tropical island nation in Micronesia, is renowned for its unspoiled natural beauty and unique marine life. Until 1994 when it achieved independence, Palau was a United Nations Trust Territory under U.S. Administration: its legal system continues to borrow from U.S. common law while also recognizing local customs and traditions.
Qualifications:
The Supreme Court is seeking individuals with a sense of adventure, an acute legal mind, and a commitment to the thoughtful development of Palauan law. At least five years quality legal experience is required, ten years preferred
Salary: $80,000 U.S. Dollars, housing, relocation costs, and a health insurance stipend
How to Apply:
Interested persons should submit a letter of application (including personal contact information), resume, list of three references (including contact information), and a writing sample. Send your application via First Class United States mail (the rate is the same as to any U.S. state) to:
Judicial Nominating Committee
Supreme Court of the Republic of Palau
P.O. Box 248
Koror, Palau 96940
Deadline: 9/30/07
80s Videos on YouTube:
When I was in junior high school, in the mid 1980s, I spent a lot of time glued to MTV, which, back in the day, actually played music videos. So I hope I'm not the only one who feels nostalgic watching some of these videos via the magic of Youtube: Mr. Mister's "Broken Wings", Michael Jackson's "Thriller" (long version), Human League's "Fascination", Journey's Steve Perry's "Separate Ways", Berlin's "No More Words", Duran Duran's "Save A Prayer", Aha's "Take on Me", Paul McCartney & Stevie Wonder's "Ebony and Ivory", Styx's "Mr. Roboto", Tom Petty & The Heartbreaker's "You Got Lucky", and John Cougar's "Jack & Diane". Legal Disclaimer: The Volokh Conspiracy and the Volokh Corporation take no responsibility for your enjoyment or lack thereof of these short musical presentations (hereinafter, "videos"). An urge to drive a Delorean, to ask someone to describe the ruckus, or to wear your underwear on the outside may result from excessive viewing. Watch at your own risk. VERY IMPORTANT UPDATE: Readers remind me of this incredible video of perhaps the greatest moment in world history. Highly recommended.
Wine Protectionism Returns:
In 2005 the Supreme court invalidated Michigan and New York state laws limiting direct-to-consumer sales by out-of-state wineries. In some states it appears that the benefits for oenophiles may be short lived. Here in Ohio, for example, the state legislature has just adopted a new law that will, once again, effectively prohibit direct-to-consumer sales by out-of-state wineries. As the Cleveland Plain Dealer reports, a provision was quietly slipped into the state budget that will prohibit wineries that produce more than 63,000 cases per year from shipping wine directly to Ohio consumers. Conveniently enough, it appears that all of Ohio's own wineries produce less wine.
"Tin Ear Award of the Week":
From headsup: the blog (thanks to Language Log for the pointer):
Today's lesson: If something looks or sounds like nonsense, back up a second and see if the fault is on your end. This one appears to have slipped by in the urge to get in the latest and newest on Those Missing Boy Scouts:
"We think it's most likely that they realized it was late and they bedded down for the night," said Charity Sharp, of the Cruso Volunteer Fire Department in southern Haywood County. "They were prepared. They knew what they were hacking into. The scout leader is familiar with the area and knew what kind of terrain they were hacking."
Bet she didn't.... [A]s a near-30-year resident of the fair state in question, HEADSUP-L is inclined to suggest that Ms. Sharp said "hiking." ... If you're going to be the Foremost Newspaper of your state, you need to know how its people talk.
The Case Against Public Restroom Hand Dryers:
Economist Glen Whitman has a good post criticizing one of my own pet peeves: public restroom hand dryers. I have to admit that my own objections to hand dryers primarily come down to the fact that "They fail at their primary function . . .
And they take too much time in failing," as Whitman aptly puts it. But he also does a good job of refuting the health and environmental arguments for hand dryers.
Wall Street Journal Website Reprints My Blog Post on National Service and the Young:
The Wall Street Journal online has chosen to reprint my blog post on the reasons my mandatory "national service" proposals tend to target the young, despite the fact that there are at least equally good reasons for focusing on the elderly or the middle-aged instead. See here.
Unfortunately, the WSJ accidentally introduced a minor error that I would like to correct: The "Democratic Leadership Conference" is in fact the "Democratic Leadership Council" (I just had "DLC" in the original post, which may have led to the mistake when the WSJ staff spelled out the abbreviation).
Ninth Circuit Dissolves Injunction Barring Defendant "from Making Any Comments That Could Be Construed as To Disparage [A Trademark]":
I've blogged before about this case, Freecycle Network, Inc. v. Oey, which Mayer Brown — the firm with which I'm affiliated part-part-part-time — is handling pro bono, and on which I helped. The Ninth Circuit just dissolved the injunction; here are some relevant excerpts (some paragraph breaks added):
[Tim] Oey initially supported
TFN’s claim to the FREECYCLE mark. Experiencing a
change of heart and convinced that the term should remain in
the public domain, Oey later urged TFN to abandon its efforts
to secure the mark, conveying his feelings in an August 8,
2005, email to fellow TFN group moderators. In the following
weeks, Oey made various statements on the Internet that
TFN lacked trademark rights in “freecycle” because it was a
generic term, and he encouraged others to use the term in its
generic sense and to write letters to the United States Patent
and Trademark Office (“PTO”) opposing TFN’s pending registration....
In April 2006, TFN sued Oey, seeking an injunction and
damages, alleging that Oey’s statements constituted contributory
trademark infringement and trademark disparagement
under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
as well as injurious falsehood, defamation, and intentional
interference with a business relationship under Arizona law.
The district court granted a preliminary injunction based
solely on TFN’s § 1125(a) claims, apparently conflating
TFN’s allegations of contributory trademark infringement and
trademark disparagement....
A) Trademark Infringement
[The alleged] facts -- even if true — simply
do not demonstrate that TFN has a likelihood of success on
its § 1125(a) infringement claim.... Oey’s actions likely did not constitute
a “use in commerce,” 15 U.S.C. § 1125(a)(1), as the
record in this case does not indicate they were made to promote
any competing service or reap any commercial benefit
whatsoever.... []“[Trademark law’s ‘use in commerce’]
refers to a use of a famous and distinctive mark to sell goods
[or services] other than those produced or authorized by the
mark’s owner.”[] Rather, based on his view that the term was
generic, Oey simply expressed an opinion that TFN lacked
trademark rights in the term “freecycle” and encouraged likeminded
individuals to continue to use the term in its generic
sense and to inform the PTO of their opinions.
Furthermore, even if Oey’s statements could somehow be
construed to be a “use in commerce,” such use was not likely
to cause confusion, mistake, or deceive anyone as to the connection
of Oey’s services (or any other) with TFN.... [O]ur review of the record identifies
no potential likelihood of confusion resulting from Oey’s
activities. Oey simply did not use TFN’s claimed mark or a
similar mark in any manner likely to confuse the relevant public:
his statements neither mention any competing service or
product, nor claim any affiliation with TFN.
Finally, Oey’s statements also do not satisfy the requirements
for false advertising, misrepresentation, or unfair competition
under § 1125(a)(1)(B). There is no evidence that
Oey’s statements were made in “commercial advertising or
promotion.” And, even if such evidence
existed, § 1125(a)(1)(B) creates liability only for product
disparagement -— i.e., misrepresentation of “the nature, characteristics,
qualities, or geographic origin” of “another person’s
goods, services, or commercial activities.” ...
B) Trademark Infringement
TFN’s complaint also alleged “trademark disparagement”
under § 1125(a). However, no such claim exists under the Lanham Act....
[But e]ven assuming TFN’s trademark disparagement claim were
somehow cognizable under the Lanham Act, ... Oey’s conduct does not
satisfy TFN’s asserted elements. Oey’s statements were not
“false.” At worst, Oey offered an erroneous legal opinion (by
a layperson) that TFN lacked trademark rights in the term
“freecycle.” “Statements of opinion are not generally actionable
under the Lanham Act.”
To this day, there has been no formal determination that
TFN has trademark rights in the term “freecycle.” The mark
is not yet registered and both an opposition to registration and
action seeking a declaration that TFN lacks trademark rights
in the term are currently pending. Oey’s statement that TFN
lacked trademark rights in the term therefore cannot be considered
a false statement of fact. []“Absent a clear and
unambiguous ruling from a court or agency of competent
jurisdiction, statements by laypersons that purport to interpret
the meaning of a statute or regulation are opinion statements,
and not statements of fact.”[]
TFN and the district court
emphasize Oey’s prior support of TFN’s efforts to trademark
the term, but these prior efforts do not render his subsequent
statements “false.” Oey is entitled to change his mind. Until
it is definitively established that TFN holds a trademark in the
term “freecycle,” it cannot be false to contend that it does not....
C) Genericide
the crux of TFN’s complaint is that
Oey should be prevented from using (or encouraging the use
of) TFN’s claimed mark FREECYCLE in its generic sense.
However, TFN’s asserted mark —- like all marks — is always at
risk of becoming generic and thereby losing its ability to identify
the trademark holder’s goods or services. Where the majority of the relevant public appropriates a
trademark term as the name of a product (or service), the
mark is a victim of “genericide” and trademark rights generally
cease.... Genericide
has spelled the end for countless formerly trademarked terms,
including “aspirin,” “escalator,” “brassiere,” and “cellophane.” ...
Of course, trademark owners are free (and perhaps
wise) to take action to prevent their marks from becoming
generic and entering the public domain — e.g., through a public
relations campaign or active policing of the mark’s use.
The Lanham Act itself, however, contains no provision preventing
the use of a trademarked term in its generic sense.
Nor does the Act prevent an individual from expressing
an opinion that a mark should be considered generic or from
encouraging others to use the mark in its generic sense.
Rather, the use of a mark in its generic sense is actionable
under the Lanham Act only when such use also satisfies the
elements of a specified cause of action — e.g., infringement,
false designation of origin, false advertising, or dilution.
TFN’s mere disagreement with Oey’s opinion and frustration
with his activities cannot render Oey liable under the Lanham
Act.
Because of these holdings, the court didn't have to reach the question whether the injunction violated the First Amendment.
Congratulations to my colleagues Don Falk, Dennis Corgi |