Eugene Volokh's Blog, page 2633
January 13, 2012
Freedom Watch Tonight
I'll be on Freedom Watch with Andrew Napolitano tonight talking about the government's "Voluntary Guidelines" for marketing food products to children and adolescents. My segment will appear at about 35 minutes after the hour.
Liberty Law Blog
Comes now the newest–and certainly one of the most welcome–additions to the blogging universe: Libertylawblog. Featuring my friends Mike Greve and Mike Rappaport. Sponsored by Liberty Fund, this is the law analogue to Liberty Fund's immensely popular economics blog econlog. I see posts by other authors there as well (including our own Ilya Somin), so I'm not certain as to what the finished product looks like.
Libertylawtalk is a serious of podcasts from the same source that you can download here.
Best wishes to Mike and Mike (perhaps it should be known as "Mikelawblog"?) and thanks to Liberty Fund for bringing this project into being.
Is the Payroll Tax Holiday Illegal?
The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or "as a practical matter" one from each party) can use this process to modify the standing order in a heartbeat and conduct business.
The Senate did exactly that to pass Mr. Obama's payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can't be true.
That seems correct to me–that either a pro forma session is a real session or it is a recess. It cannot simultaneously be both, can it?
The President's Agency Consolidation Proposal
This morning I received a CNN "Breaking News" alert that "President Obama said today he is elevating the Small Business Administration to a Cabinet-level agency." My first reaction was utter disbelief. The question is whether the SBA should exist, not whether it should be a cabinet-level agency. Fortunately, the CNN report was in error. What the President is, in fact, proposing is to consolidate multiple business-related agencies, including the SBA, into a single agency. As the White House fact sheet explains:
Currently, there are six major departments and agencies that focus primarily on business and trade in the federal government. The six are: U.S. Department of Commerce's core business and trade functions, the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.
This is redundant and inefficient. Small businesses often face a maze of agencies when looking for even the most basic answers to the most basic questions. There is a whole host of websites, toll-free numbers and customer service centers that at times offer them differing advice. The result is a system that is not working for our small businesses.
The President is proposing to consolidate those six departments and agencies into one Department with one website, one phone number and one mission – helping American businesses succeed.
This is a good idea. To be sure, I would love to see the President go even farther and consider whether the federal government needs to devote taxpayer dollars to business promotion at all. But if the government is going to be engaged in such efforts, it certainly makes sense to do so in as efficient a way as is possible, eliminating duplicative agencies and functions. This plan may only be a small step in the right direction, but given the orgy of spending over the past several years (including during the Bush Administration), a reorganization plan projected to save $3 billion over ten years is certainly a step in the right direction. Brad Plumer has more here.
A Crime to Threaten "Spiritual Injury" to Compel a Voter
Minn. Stat. Ann. § 211B.07 makes it a gross misdemeanor — I think unconstitutionally, at least as to the "spiritual injury" element — to
directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.
No Bottled Water on Uncle Sam's Dime
This morning, the U.S. Court of Appeals for the D.C. Circuit decided U.S. Department of the Navy v. FLRA, resolving a labor dispute over water. Judge Kavanaugh's opinion for the court begins:
This case turns on whether a government agency may provide employees with free bottled water even when safe and drinkable water is available from water fountains at their work sites. Under federal appropriations law, the answer is no.
Apparently the Navy began providing bottled water to workers at a facility in Rhode Island because some water fountains had been manufactured with lead. After the water fountains were replaced, the Navy discontinued providing the bottled water without charge because "providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees' personal expenses." But the Navy failed to consult with the facility's civilian employees' unions before making its decision. In response, the unions filed a grievance, alleging that the provision of bottled water had become a condition of employment at the facility. An arbitrator and the Federal Labor Relations Authority agreed, only to be reversed by the D.C. Circuit on the following grounds:
Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for "necessary expenses" but not for employees' "personal expenses." As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are "inconsistent with any Federal law." 5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.
We therefore vacate the decision of the Federal Labor Relations Authority and remand this case to the Authority to determine whether the tap water is in fact safe to drink. If the Authority concludes that the tap water is safe to drink, the Authority must rule for the Navy.
How to Fix Copyright, Part Three
In my last post I discussed issues involving the term of protection. I argued that there should be different terms of protection for different categories of works. If copyright law is predicated wholly or in substantial part on the need to provide incentives to create, then finding the right level of incentive is important given that different works have different levels of investment and different commercial lives. Giving all copyrighted works – from emails, lawyers' cease-and-desist letters, software manuals, fashion magazines, maps, David Post's Moose book, works of sculpture, and 200 million dollar movies — the same protection makes no sense if we accept the incentive rationale.
Some may misstake this as a call to weaken copyright, but as I noted in a comment on Part Deux, the term "weaken" is inappropriate here: copyright law is not a living organism, nor is it a building or other structure. The accusation of "weakening copyright" is simply a bad metaphor, used by those who support the status quo to resist basing copyright law on evidence. ("Looks like the upper hand is on the other foot").
So what would an evidence-based approach to the term of protection look like? In Part Deux, I advocated using the approach taken by the economists in the Eldred case: figuring out what the present value/future value of an extension of term would be. This approach could also be applied to reductions in term: evidence whether any proposed reduction in term would take away meaningful amounts of present value would be important.
To date, the present value/future value approach has been applied at the macro level – to all types of works, and not as I also advocate, at the micro level for particular types of works. To do a better job at the micro level, we would need data on average commercial lives for classes of works. In the case of books, for example, Books in Print and other similar publications could be used. In 2002, Jason Schultz did a study of books still in print that were first published during the period of 1927–1946. He found that of the 187,280 books published during that period, only 2.3% were still available in 2002. Thus, the 1998 term extension kept under copyright 97.7 percent of books that were no longer in print, but which could nevertheless not be used. To better match incentives, we should want the number of books in print after a particular period to be quite a bit higher, at least 50%. Finding that number can be done, empirically.
There is a risk, though, of depriving some works that are still commercially valuable of a revenue stream. Mandatory formalities, such as affixing a copyright notice and filing a statement of a continued interest in the work can help here. There was a requirement of filing a timely renewal application with the U.S Copyright Office from 1790 to 1992 (the latter date for only some works). Failure to renew meant that copyright owners only got one term of protection, originally that was 14 years, and later it was expanded to 28 years.
The failure to renew was an empirical, market signal about the value copyright owners themselves placed on copyright. The renewal rates also showed a consistent difference in renewal rates for classes of works. The lowest renewal rates (0.4 percent) were for technical drawings, lectures, sermons, and other oral works. The highest renewal rate was for motion pictures (74 percent). Music was 48 percent and books only 7 percent. Our current one-size– fits-all approach ignores this significant data about how copyright owners have themselves valued copyright. Based on this evidence, the correct term of copyright should vary depending on the type of material being protected, with books getting a shorter term than motion pictures.
However we approach our copyright laws in the U.S., we can and should do better than we are now.
January 12, 2012
A Father Taking His Daughter's Name
Daughters in Western cultures usually take their father's names. (In Russia, they even take the names twice, by using the father's first name as the basis for a patronymic and using the father's last name as their own last name, so that the daughter of Ivan Petrov named Maria would be called Maria Ivanovna Petrova.) But I know of at least one noteworthy father who took his daughter's name as part of his own last name. Who did this, and why?
Continuing Problems with Delays in Posting of Comments
We're having continuing problems with delays in posting of comments; we will probably be solving it soon by shifting to a different comment hosting system (or so I hope). Sorry in the meantime for the glitches ....
The Federalist Society's Olin-Searle-Smith Fellows in Law Program
If you're generally libertarian, conservative, or centrist in your legal outlook, and are interested in going on the law teaching market, I highly recommend this program, which offers a stipend of $50,000 plus benefits, as well as office space at a law school. The application is due March 15, 2012.
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