Eugene Volokh's Blog, page 2632

Pointless Plane Prohibition

(Jonathan H. Adler)

All electronic devices must be turned off prior to takeoff. If you fly anywhere, you've almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane's equipment. But the rule applies across the board, even to iPads in "airplane mode" and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:

I've spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers' hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That's only 0.00003 of a volt.

"The power coming off a Kindle is completely minuscule and can't do anything to interfere with a plane," said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. "It's so low that it just isn't sending out any real interference."

But one Kindle isn't sending out a lot of electrical emissions. But surely a plane's cabin with dozens or even hundreds will? That's what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that's not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: "agency inertia and paranoia."

Angary

(Eugene Volokh)

I just learned this word a few days ago, so I thought I'd pass it along. What does it mean?

Cupcakes

(Eugene Volokh)

The TSA cupcake incident reminded me of this mysterious item I spotted at my local Whole Foods several years ago:

Prof. (and Former Judge) Michael McConnell on the OLC Recess Appointments Opinion

(Eugene Volokh)

Some tentative thoughts from the Advancing a Free Society blog:

[T]he Opinion places enormous weight on the fact that the Senate's resolution providing for pro forma sessions declared that there would be "no business conducted." There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is "capable" of exercising its constitutional functions — not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President "may properly rely on the public pronouncements of the Senate that it will not conduct business." It is hard to see why the Senate's stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President's authority to make recess appointments during intrasession recesses in the first place — wholly apart from the pro forma issue — consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy "happens" during a recess, as the text of Att. II, § 2, cl. 3, says, and that "the recess" of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face "some litigation risk." But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush's recess appointment power. The law cannot change just because the shoe is on the other foot.

The Joys of "Anonimus"

(Orin Kerr)

A week or two ago, I banned commenter "Anonimus," who had become kind of famous in VC threads for his steady stream of insults to other commenters. It won't surprise regular readers of comment threads that Anonimus hasn't been deterred by his banning: After making the usual complaints that he was the victim of censorship, Anonimus kept commenting and insulting other commenters as before. And when I kept deleting his contributions, he eventually just switched to a new name, "Dissentus," albeit with all the recognizable style (and IP address) used by Anonimus.

Anyway, please don't respond to Anonimus, Dissentus, or whatever name he'll use next. I'll eventually get around to deleting his comments, and I'll delete any that respond to him, too. Thanks.

Legal Education Reform, But How?

(Orin Kerr)

The National Law Journal reports on a recent panel at the AALS conference on the need for changes in legal education. Readers will recall that Judge Cabranes also spoke at the same conference on the same topic, and he urged a return to traditional doctrinal classes and a reduction in "law and" classes. The National Law Journal article adds several more recommendations, such as adding a year of executive-education classes, recommended by the Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership.

Perhaps I am too cynical, but a common theme of these recommendations seems to be that students should be more directed towards the practice needs of the recommender's speciality area. Transactional lawyers tend to suggest more transactional training, judges suggest more doctrine, etc. I suppose that's understandable: Like the blind men with an elephant, we assume that the corner of the legal world we experience reflects the legal market as a whole. Still, that trend makes me a bit skeptical that curricular reform is the answer to current problems in legal education. This aside about employment prospects for graduates of existing programs with new "innovative" curricula seems worth noting:

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

"There's no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven't affected hiring patterns," Henderson said.

Maybe that's because employers haven't realized the value of curricular innovations. But it might also be because curricular innovations have less of an impact on the skills and knowledge base of law school graduates than their proponents realize.

David Addington Favors Transparency When Presidents "Test the Outer Limit of their Powers Under the Constitution"

(Orin Kerr)

During the Obama Administration, at least.

Advantage: Volokh Conspiracy

(David Bernstein)

Timothy Geithner, December 2006, Federal Reserve Meeting: "Our recent financial-market data don't, in my view, provide a convincing case for a substantial increase in the probability of a much weaker path for growth going forward."

David Bernstein, February 2007, Volokh Conspiracy, "America, Meet Mr. Recession?":

Meanwhile, up to 25% of last year's loans would not be viable under stricter underwriting standards this year! Wow! Assumedly, that percentage figure is higher in bubble markets. Given the huge role easy home financing and refinancing has played in the 2000s economic boom (some huge percentage of jobs created over the last several years were in construction and real estate, and consumer spending was boosted significantly by "using the house as an ATM"), what's going to keep the economy afloat?

"Israel-Firster"

(David Bernstein)

There has been a controversy brewing over allegations that several bloggers at the liberal Center for American Progress have used anti-Semitic rhetoric when criticizing Israel and its American Supporters. Critics have particularly focused on these bloggers' use of the term "Israel-firster."

I haven't paid all that much attention to the controversy, but today I came across a piece by Jamie Kirchik in which he alleges that the term "Israel-firster" was first popularized by Willis Carto's anti-Semitic The Spotlight, and that the term gradually migrated from the anti-Semitic far right to the "Progressive" left.

So I decided to do some research. I couldn't find any online archives of The Spotlight, but here is what I did find.

The "Israel-firster" slur was not used in "mainstream" discourse until the last few years.

Before that, you can find it occasionally in the early 1980s and 1990s in sources such as Wilmot Robertson's anti-Semitic Instauration journal, a 1988 anti-Semitic book called "The F.O.J. [Fear of Jews] Syndrome, and a 1998 anti-Semitic book "Rise of AntiChrist." I also found a couple of references to "Israel-firsters" in the extremist anti-Israel publication, The Washington Report on Middle East Affairs, and from writers associated with this journal.

By the early 2000s, one can find "Israel-firster" being used by a variety of anti-Semitic "right-wing" sources like DavidDuke.com and the Vanguard News Network. As the decade wore on, the phrase occasionally pops up in far left anti-Israel sites that have ties to the anti-Semitic far-right or are known for playing footsie with anti-Semitism, like Antiwar.com, Norman Finkelstein's website, and Indymedia.

Finally, over the last few years the term has become increasingly used on the anti-Israel far left, especially by blogger M. J. Rosenberg of Media Matters, who Kirchik calls the "worst offender."

Obviously, the phrase "Israel-firster" should be expunged from reasoned discourse, regardless of its origins–it amounts, as Kirchik points out, to name calling as opposed to argument. And it certainly questions the patriotism of Jewish Americans to whom the moniker is applied, which at best potentially plays to anti-Semitic sentiment.

But is the phrase clearly anti-Semitic, even if used by those who have no anti-Semitic intent? I don't think we need to reach that issue. Some of the "Progressive" bloggers who have used the phrase may not have been aware of its origins in the depths of unhinged neo-Nazi land.

So the question is, does your average Progressive recoil at the use of terminology that migrated recent from the far-right racist kook fringe to refer to members of minority groups? They sure do. Should they recoil less if the terminology is aimed at Jews, as opposed to other minority groups? They sure shouldn't–unless they are themselves prejudiced against Jews.

Therefore, regardless of what cockamamie post hoc excuses they come up with (Rosenberg, for example, claims that when he talks about "Israel-firsters", he only means "Netanyahu firsters"), if bloggers want to claim status as Progressives who are not anti-Semitic, they should treat the phrase "Israel firster" the same disdain as any other phrase that recently emerged from the sewers of racism.

A Second Amendment-ish Victory for People Who Had Been Temporarily Committed to Mental Institutions with No Adversary Proceedings

(Eugene Volokh)

In today's United States v. Rehlander (1st Cir. Jan. 13, 2012), the First Circuit revisited and narrowed its precedents related to 18 U.S.C. § 922(g)(4) — the statute that bars gun possession by people who had at some point been "committed to a mental institution" — in light of the Second Amendment:

Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine's "emergency procedure," Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been "committed to a mental institution." 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a "commitment" under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation....

Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.

For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a "commitment," not "emergency hospitalization," and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms....

[Appellants claim] that, given Heller's pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.

We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a "commitment" for federal purposes....

Chamberlain, at the time it was rendered, was a reasonable albeit not compulsory reading of section 922(g)(4). Although section 3863 did not use the word "commitment" and its procedures were effectively ex parte, it was clear from section 922's legislative history cited in the decision that Congress intended an expansive interpretation. Other circuits reached differing conclusions regarding emergency hospitalization procedures similar to section 3863, but none indicated that there was a constitutional dimension to the problem.

Heller now adds a constitutional component. Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required. It is evidently doubtful that a section 3863 commitment provides the necessary process for a permanent deprivation.

Section 3863 permits three-day involuntary hospitalizations (earlier it was five days) without any adversary proceeding and with no finding by an independent judicial or even administrative officer that the subject is either mentally disturbed or dangerous. True, there must be an application to a judge and a certification by a "medical practitioner"; but the judge merely determines that the procedural steps have been taken and makes no substantive findings. And the subject is never heard by the judge, through counsel or otherwise.

This is all that is practical for an emergency hospitalization, and for this purpose, we agree with the Maine courts that it is the only process that is due. An observer has provided facts, a medical professional has assessed mental illness and a threat to the immediate safety of the subject or others, and hospitalization is limited to a few days unless voluntarily extended by the subject or extended by a court under protective procedures.

By contrast, involuntary commitment under section 3864 is allowed only after a court holds an adversary hearing providing counsel for the patient and an opportunity to testify and to call and cross-examine witnesses. The committing court must then itself determine whether there is clear and convincing evidence that the patient is mentally ill and poses a likelihood of serious harm, and whether better alternative arrangements exist. .

The Supreme Court made clear in Heller that its decision did not undercut traditional restrictions on the possession of arms by those who were mentally ill. But nothing suggests that the Court was there addressing a permanent ex parte deprivation of its newly recognized constitutional right. And, given ordinary due process requirements that the Court has adopted in the past, it is highly doubtful that it would deem section 922(g)(4) adequate if it were read to embrace the Maine emergency hospitalization — at least absent further protective procedures or remedies.

This would be a different case if section 922 addressed ex parte hospitalizations and provided for a temporary suspension of the right to bear arms pending further proceedings. It could also be different if section 922 permitted one temporarily hospitalized on an emergency basis to recover, on reasonable terms, a suspended right to possess arms on a showing that he now no longer posed a risk of danger. In all events, right now there is no recovery procedure in Maine that would avoid the ban of section 922.

The Attorney General can grant relief from firearms disability, 18 U.S.C. § 925(c), but Congress has prohibited action on such petitions since 1992. Congress has also allowed states to develop a "relief from disabilities program," but Maine's program has not been approved by the Attorney General....

The constitutional doubts raised by such a regime are sufficient that we now conclude that section 922 should not be read to encompass a temporary hospitalization attended only by the ex parte procedures of section 3863. The ordinary rule is that statutes are to be read to avoid serious constitutional doubts, if that course is possible, and it is readily possible here. Indeed, some circuit courts had read procedures like section 3863 not to create disability even without constitutional doubts awakened by Heller....

[T]he government points to evidence that Small and Rehlander were mentally ill and dangerous both at the time of their emergency admissions and when they possessed firearms. But in section 922, Congress did not prohibit gun possession by those who were or are mentally ill and dangerous, and such a free floating prohibition would be very hard to administer, although perhaps not impossible. This is why, as with the ban on prior felons, Congress sought to piggyback on determinations made in prior judicial proceedings to establish status.

Thus, section 922(g)(4) does not bar firearms possession for those who are or were mentally ill and dangerous, but (pertinently) only for any person "who has been adjudicated as a mental defective" or "has been committed to a mental institution." As we read section 922 in light of the concerns already discussed, a temporary hospitalization under section 3863 does not constitute a "commitment" under section 922 — just as it clearly does not constitute a commitment under Maine law itself....

This strikes me as quite right: The Court did state that the Second Amendment right did not extend to certain people, including the mentally ill. But this doesn't mean that Second Amendment rights can be permanently lost based simply on a government official's determination of mental illness, made without any adversarial proceeding at which the defendant can make his case. Just as so-called "First Amendment Due Process" rules (including ones against speech-restrictive injunctions imposed based on an ex parte, nonadversarial hearing) protect free speech rights, so courts must recognize Second Amendment Due Process principles to protect the right to keep and bear arms.

Note also that the statement in Heller about the constitutionality of bans on gun possession by "the mentally ill" doesn't on its face dispose of bans on people who were once mentally ill, perhaps many years ago. But that is a separate question.