Eugene Volokh's Blog, page 2649
December 18, 2011
Kim Jong Il Dies
In an interesting historical coincidence, brutal North Korean communist dictator Kim Jong Il has died on the same day as heroic anticommunist dissident Vaclav Havel.
Kim presided over the world's most repressive regime, the closest ever to a real-life version of Orwell's 1984. Even Soviet communism was relatively mild by comparison. He was responsible for hundreds of thousands of deaths, many of them as a result of the politically-created famine of the 1990s, which he facilitated in order to reinforce the regime's power. He was also known for various strange obsessions, such as his plan to solve North Korea's government-created food shortages by breeding giant rabbits. This literally hare-brained scheme was cut short when the "Dear Leader" ate the first few giant rabbits imported from Germany at his birthday party.
The interesting question for the immediate future is whether the North Korean government will survive Kim's death relatively unchanged. Kim tried to install his son as his successor, just as his father Kim Il Sung did with him. Hopefully, things will not go as the Dear Leader planned.
Vaclav Havel, RIP
Today is a very sad day. Vaclav Havel has passed away. Havel was a great writer and playwright and became the leader of Czechoslovakia's anticommunist dissident movement in the 1970s and 80s. He spent several years in communist prisons. After the fall of communism in the Velvet Revolution — to which he made a crucial contribution — Havel became the first president of the newly democratic Czechoslovakia. His book <em>The Power of the Powerless is one of the greatest-ever works on life under communism and the dynamics of political oppression more generally. I discussed it in slightly greater detail in this post on the books that influenced me the most. One of Havel's less-known achievements was presiding over the peaceful and efficient "Velvet Divorce" between the Czech Republic and Slovakia. This was one of the least painful and most successful secessions in recent world history, with both countries benefiting from in the long run. Even though Havel wasn't happy about the "divorce," his leadership helped minimize its potential negative effects.
The New York Times has a detailed obituary here. A variety of tributes are pouring in from all over the world. No one could be more deserving of them than Havel.
UPDATE: In this 2009 post, I discussed Havel's powerful critique of the UN Human Rights Council.
Gingrich on Judicial Review
Former Speaker and presidential hopeful Newt Gingrich has been turning heads with his comments on "judicial activism" and the "Arrogant overreach" of federal judges. From the WSJ:
Republican presidential candidate Newt Gingrich came out swinging Saturday against the nation's legal system, pledging if elected to defy Supreme Court rulings with which he disagrees and declaring that a 200-year-old principle of American government, judicial review to ensure that the political branches obey the Constitution, had been "grossly overstated."
Courts "are forcing us into a constitutional crisis because of their arrogant overreach," Mr. Gingrich told reporters in a Saturday conference call. He repeatedly blasted federal judges for imposing "elitist opinion" on the rest of the country. . . .
"Do we really believe that all the intricate systems that we have created should come down to one lawyer?" he said. "The courts are too aggressive, and the courts have been trying to impose an elitist value system on a country that's inherently not elitist."
He pointed to a position paper on his campaign website, which states that "should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored."
Here is the campaign white paper to which Gingrich referred.
Asked about these quotes on CBS' Talk of the Nation this morning, Gingrich did not back off, and suggested that disputes among the three branches on constitutional questions should be decided "two out of three."
Citing what he describes as "extreme behavior" on the party of the judicial system, Gingrich proposes a system wherein "it's always two out of three."
"If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses," said Gingrich. "The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power — not to have a dictatorship by any one of the three branches." . . .
Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that's the point.
"I think many lawyers will find this a very frightening idea," he said. "They've had this run of 50 years of pretending judges are supreme, that they can't be challenged. The lawyer class defines America. We've had rulings that outlawed school prayer, we've had rulings that outlawed the cross, we've had rulings the outlawed the 10 Commandments, we've had a steady secular drive to radicalize this country away from all of its core beliefs."
Gingrich's proposals have drawn substantial criticism, including from the Right. On NRO's Bench Memos, Ed Whelan and Matt Franck tag team the former Speaker's proposal to abolish judgeships as a way of reining in wayward courts: 1 (Whelan), 2 (Franck), 3 (Whelan), 4 (Franck).
Air France 447 and the Future of Socially Engineered Cyberwar
I recently read Popular Mechanics' riveting article reconstructing the last minutes Air France 447, which in 2009 disappeared without explanation over the Atlantic between Rio and Paris. Using the cockpit transcript, the article reveals that the pilots essentially flew a fully functioning passenger jet into the sea. Why? It appears that a temporary loss of flight speed data and then the disconnection of autopilot systems panicked a copilot into lifting the nose of the plane. He then more or less kept the stick pulled all the way back as the plane lost forward speed and plunged into the ocean, paying no attention to dozens of blared stall warnings. Here's a bit of the transcript and Popular Mechanics' commentary:
02:10:55 (Robert) Putain!
Damn it!
Another of the pitot tubes begins to function once more. The cockpit's avionics are now all functioning normally. The flight crew has all the information that they need to fly safely, and all the systems are fully functional. The problems that occur from this point forward are entirely due to human error.
02:11:03 (Bonin) Je suis en TOGA, hein?
I'm in TOGA, huh?
Bonin's statement here offers a crucial window onto his reasoning. TOGA is an acronym for Take Off, Go Around. When a plane is taking off or aborting a landing—"going around"—it must gain both speed and altitude as efficiently as possible. At this critical phase of flight, pilots are trained to increase engine speed to the TOGA level and raise the nose to a certain pitch angle.
Clearly, here Bonin is trying to achieve the same effect: He wants to increase speed and to climb away from danger. But he is not at sea level; he is in the far thinner air of 37,500 feet. The engines generate less thrust here, and the wings generate less lift. Raising the nose to a certain angle of pitch does not result in the same angle of climb, but far less. Indeed, it can—and will—result in a descent.
While Bonin's behavior is irrational, it is not inexplicable. Intense psychological stress tends to shut down the part of the brain responsible for innovative, creative thought. Instead, we tend to revert to the familiar and the well-rehearsed. Though pilots are required to practice hand-flying their aircraft during all phases of flight as part of recurrent training, in their daily routine they do most of their hand-flying at low altitude—while taking off, landing, and maneuvering. It's not surprising, then, that amid the frightening disorientation of the thunderstorm, Bonin reverted to flying the plane as if it had been close to the ground, even though this response was totally ill-suited to the situation.
The article offers a final observation on what things were like in that cockpit, minutes from the crash:
Over the decades, airliners have been built with increasingly automated flight-control functions. These have the potential to remove a great deal of uncertainty and danger from aviation. But they also remove important information from the attention of the flight crew. While the airplane's avionics track crucial parameters such as location, speed, and heading, the human beings can pay attention to something else. But when trouble suddenly springs up and the computer decides that it can no longer cope—on a dark night, perhaps, in turbulence, far from land—the humans might find themselves with a very incomplete notion of what's going on. They'll wonder: What instruments are reliable, and which can't be trusted? What's the most pressing threat? What's going on? Unfortunately, the vast majority of pilots will have little experience in finding the answers.
That all sounds right. But like everything else these days, it made me think about cyberwar. Some of the most effective tactics used by our adversaries have a social engineering component. That is, they know how humans react to certain situations and take advantage of that reaction to gain control of our computers. They know we're likely to open messages and click on links sent by superiors in our organization. They know we will accept friend requests from people who are already connected to a lot of our friends. Stuxnet took advantage of social engineering of a sort by making sure that the systems reported normal activity to the humans in the control center while sending abnormal requests to the machines. The humans believed what their controls told them.
What does this have to do with the crash of AF447? The reaction of the AF447 pilots was tragically human. Once we lose faith in computer systems, especially in an emergency, all of us are likely to ask, "What instruments are reliable, and which can't be trusted? What's the most pressing threat? What's going on?" And if we have only minutes to make a decision, we're likely to lock on a fragment of our training and keep trying it. The evidence that we're failing disastrously just makes us pull harder on the stick.
So: Why can't that reaction be engineered? Put another way, could a hacker have caused the AF447 crash, not by directly overriding the pilots but by manipulating their very human reactions? I should stress that I don't believe a hacker did that. Quite the reverse. I'm asking whether future cyberattacks will try to manipulate the human beings behind the computers.
On reflection, the answer is obvious. All of war is an effort to manipulate the opponent into a different, defeated frame of mind. But the logical conclusions are pretty troubling. Even as we begin to deploy automated defenses against remote sabotage, attackers will turn to social engineering to defeat them. Once again, this gives the offense far more options than the defense.
Thus, imagine that we decide to improve our cyberdefenses by redesigning critical military or civilian systems so that computers alone cannot cause catastrophic missteps. That's good, but it simply challenges the attacker to find a way to influence not just the computers but also the humans – to panic the humans into a catastrophic misstep. Even if the attacker can't fly our planes into the sea, maybe he can get our pilots to do it for him. Even if he can't cross the air gap to bring down our nuclear plants, he might be able to fake an emergency in the operations center that leads to the same outcome.
As AF447 shows, the key to such an attack is to create doubts about what is true in a situation where decisions must be made in minutes. Then, as AF447 shows, humans revert to muscle memory and to training, which in some cases can lead rather predictably to disaster.
We're already seeing rudimentary social engineering in cyberattacks. We need to get ready for something a lot more sophisticated.
Interested in Being Local Counsel in a Pro Bono Case in the District of Oregon?
If you might be interested in being local counsel on a motion for new trial in a pro bono case in the U.S. District Court for the District of Oregon, please e-mail me at volokh at law.ucla.edu. Thanks!
Interstitial Law
Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage.
As you may have gleaned, it turns out that marriage isn't the only area where federal law draws upon or relies upon a pre-existing concept under state law. As has been mentioned in passing in my posts and in the comments, bankruptcy and tax law frequently draw upon state property law. (Before you tax and bankruptcy experts complain, yes, I know that federal law doesn't always follow exactly what the state does, but in many cases the variations in state law are incorporated.) That's also true in criminal law (where prior state convictions trigger increased punishments for later federal crimes), in federal enclaves (where the Assimilative Crimes Act incorporates the criminal law of the surrounding state), and much more. Henry Hart called this kind of federal law "interstitial."
In some of areas of "interstitial" law, the choice of law problems are pretty well worked out. It's pretty obvious to everybody that your prior state convictions are determined by the state where you were convicted, and so on. But in others, the choice-of-law problem is subject to the same kinds of ambiguities as marital law is, so my article provides some insight for resolving those areas too. (For example, my article shows why the Klaxon rule, which some courts have used, shouldn't be extended to those areas.)
I think I have another normative point, too. Sometimes when interstitial law is invoked in a particular context, it strikes people as weird or counter-intuitive. Shouldn't the scope of a federal right or the meaning of a federal law be uniform? I hope that our exploration of interstitial law convinces you that the answer is "not necessarily." In many areas that are politically controversial, legally technical, or both, federal law has drawn much of its effect from state law.
At least two cases pending at the Supreme Court this term involve a dispute over interstitial law — the social security case of Astrue v. Capato (thanks, Nick, for calling it to my attention), and the habeas case of Gonzalez v. Thaler. In Capato, the federal government champions interstitial law — it wants state law to determine when a child conceived after his father's death (by artificial insemination, of course) can inherit — in Gonzalez, it's the habeas petitioner — he thinks state law makes his federal habeas petition timely. I'm not sure about the correct ultimate outcome in either case, but I think it's important for the Court to see that there's nothing anomalous or weird about relying on state law in such cases.
Thanks to Eugene and his co-conspirators for letting me crash here for the week, and thanks to the commenters, many of whom were insightful or informative. If you want to hear more from me, you can read my articles on SSRN (stay tuned for my blockbuster essay on the Jurisdiction and Venue Clarification Act), and you can follow me on Twitter (though it's really not my medium). I'm sure I'll see you all around the blogosphere again someday — maybe soon, maybe in a year or two.
December 17, 2011
Happy Saturnalia!
Today is the ancient Roman holiday of Saturnalia, which has been celebrated here at the VC for several years now (see here, here, here, and here). Here's a description of this not-to-be-missed event from the Encyclopedia Romana:
During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."
With an ongoing presidential election, we have no shortage of worthy candidates for the post of "Lord of Misrule."
Happy Saturnalia to all our friends, Romans, and countrymen out there!
For (slightly) more serious VC posts about ancient Rome, see here and here.
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December 16, 2011
Congress
Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress.
First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing a statutory rule. Indeed, one of the few virtues of DOMA is that it is just such a rule. And in one of the most recent proposed bills that would repeal DOMA, Congress has also proposed replacing it with a choice of law rule.
I think this is a great idea. If DOMA goes away, Congress should exercise its power to replace it with some legitimate choice of law rule (obviously, if DOMA is unconstitutional, the replacement rule couldn't be identical to DOMA, but there are a lot of other possibilities).
A congressional choice of law solution would have more legitimacy than a common-law solution, and could be more far-reaching, considering a broader range of policy considerations. (It could even extend federal marital benefits to civil unions, as discussed in my exchange with JHW.) Indeed, the opportunity to provide a replacement rule is one reason that Congress ought to repeal DOMA rather than just waiting around for the courts to have their way with it.
As for what rule Congress should adopt, I think the rule proposed in S.598 is a pretty good one. That rule is:
For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
For domestic marriages, the bill makes the marriage valid if it was valid where the couple got married. (Note, by the way, that with very rare exception, a marriage is almost always valid where the couple got married, because the couple usually chooses to get married someplace where their marriage will be valid.) For international marriages, there is the extra requirement that it must be a marriage that is valid in at least one state — no polygamy, no brother-sister marriages, no marrying nine-year-olds.
This is something of a "maximalist" approach to the choice of law problem, because in practice it will make almost all same-sex marriages valid. (Or at least it is "maximalist" within the realm of the traditional choice of law options.) So I think it would be problematic for courts to impose a solution like this without Congressional authorization. But it would also maximize stability and predictability for same-sex couples, at least with respect to federal law. As with the common-law solution, there's plenty of room for argument about what rule Congress should adopt, but it would be nice if it stepped in with a rule.
However, I am pessimistic about this actually happening. Scholars have been calling for Congress to fix various choice of law problems for decades, and it rarely happens. While the DOMA repeal bill is a sign that at least somebody in Congress has thought about this issue, I don't think anybody should be holding their breath for that bill, or any other statutory solution. That's why I spent so much time blogging about the courts.
A (Literally) Fishy Study on Political Ignorance
The Chronicle of Higher Education has a summary of an interesting recent study that uses an experiment conducted on fish to try to claim that there are underappreciated benefits to political ignorance [HT: VC reader John Perkins]:
A team of researchers led by a Princeton University biologist has now studied that question and concluded that without all our know-nothing fellow citizens, things might be even worse.
The team, led by Iain D. Couzin, an assistant professor of ecology and evolutionary biology at Princeton, carried out its work with a type of fish known as golden shiners. The group trained some of the fish to associate food with a blue target and trained a smaller number of the fish to associate food with yellow, a color the fish more naturally prefer.
Placed together, most fish pursued yellow targets, suggesting the smaller group's more intense desire for yellow overwhelmed the larger group's numerical advantage, Mr. Couzin reported. But as fish without any training were added, the group increasingly favored the blue target, he said.
"A strongly opinionated minority can dictate group choice," the research team wrote in its report, published in Thursday's edition of the journal Science. "But the presence of uninformed individuals spontaneously inhibits this process, returning control to the numerical majority."
The behavior of golden shiners demonstrates "the role of uninformed individuals in achieving democratic consensus amid internal group conflict and informational constraints," wrote the research team....
In a separate commentary in the same issue, two authors from the University of Washington at Seattle, Carl T. Bergstrom, an associate professor of biology, and Jevin D. West, a biology research associate, said they agreed the work by Mr. Couzin's group showed that "uninformed agents can promote democratic outcomes in collective decision problems."
The study is cleverly designed. But I don't think it actually proves that political ignorance is beneficial. No one doubts that a large majority of ignorant voters can sometimes get its way against a more knowledgeable minority. But that's precisely why political ignorance is a problem: Other things equal, a more ignorant electorate is likely to make worse decisions than a more knowledgeable one. Under such conditions, the more "democratic" (in the sense of more majoritarian) outcome isn't necessarily better. Indeed, the more influence the ignorant majority has, the greater the negative impact of their ignorance.
In some situations, the paper's authors claim, the uninformed are a minority, but they gravitate towards the majority among the rest of the group, thereby making a majoritarian outcome more likely. This, assumes, however, that their ignorance does not itself bias them towards one side of a dispute or the other. This may be true among fish, but is often false among human electorates, where ignorance does not prevent people from holding political opinions and also makes them vulnerable to manipulation. Relatively ignorant voters can still be highly biased "political fans."
Even if a more majoritarian outcome is always preferable to a less majoritarian one, that is still consistent with the notion that majoritarian decisions by a relatively well-informed electorate are likely to be better than those made by a more ignorant one. And, regardless of what happened in the case of the fish, a knowledgeable majority in the real world is at least as likely to get its way in real-world democratic processes as a relatively ignorant one.
Furthermore, ignorance sometimes enables a narrow interest group to get its way at the expense of the general public, because the latter is unaware of what is going on. In this article, I explain how this happened in may states that adopted post–Kelo eminent domain reforms. The fish study doesn't take account of this possibility because there is no body of knowledge known to one group of fish that is unknown to the other that allows the former to exploit the latter for their own benefit.
This is not to deny that there are some cases where political ignorance can have beneficial effects. Consider, for example, a highly knowledgeable electorate with extremely evil values (e.g. — a racist electorate whose primary goal is the desire to oppress some racial minority as much as possible). These voters would be able to choose policies and leaders that achieve their evil objectives more effectively than an equally evil electorate that was more ignorant. There are also a few other scenarios where political ignorance might turn out to be bliss; I may discuss some of them in a future post. This study, however, doesn't shed much light on any of them.
An Interesting Parental Rights / Grandparent Visitation / Stepparent Adoption Case
The case is In re Adoption of J.P. (Ark. Dec. 15, 2011), and it involves both a conflict between a father and a deceased mother's parents (and grandparent), and a challenge to the adoption by the father's new wife (the child's godmother, as it happens). The Arkansas Supreme Court indirectly relies on the father's constitutional parental rights to overturn a lower court award of visitation to the grandparents and great-grandmother, who had been closely involved with the child's upbringing but who were now less involved in the child's life because of a rift with the father. The court concludes that the father's rights aren't absolute, and that a sufficient showing of harm to the child could justify granting visitation rights to the grandparents and great-grandmother, but that no such showing was made here.
But the court refuses to allow the new wife (and godmother) to adopt the child, for reasons related to the rift with the grandparents and great-grandmother:
Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child.... Here, the circuit court found, in pertinent part:
Although Derek and Andrea testified that it was coincidence, the restriction of [Doris]'s and [Bertie]'s contact with [J.P.] began when Derek and Andrea started dating. From an observation of Andrea as a witness, the Court finds Andrea's attitude toward [J.P.] to be possessive and exclusive of the maternal family. The Court finds that an adoption of [J.P.] by Andrea would not be conducive to fostering a relationship between [J.P.] and his maternal family. A hindrance or loss of a relationship with his maternal family would not be in the best interest of [J.P.]
Considering all the best interest factors, the Court finds that the adoption of [J.P.] by Andrea is not currently in the best interest of [J.P.] The Petition for Adoption is denied.
It is clear from Andrea's testimony that tension existed between her and J.P.'s maternal family. It is that tension that troubled the circuit court and served as the court's basis for finding that the adoption was not currently in J.P.'s best interest; we do not disagree. That is not to say that it would not be in his best interest at some point in the future. However, giving due regard to the opportunity and superior position of the circuit court to judge the witnesses before it, we cannot say the circuit court's finding that adoption was not currently in J.P.'s best interest was clearly against the preponderance of the evidence. For this reason, we affirm the circuit court's denial of the petition for adoption.
So the father (1) has a presumptive constitutional right to limit visitation by other family members — but (2) he does not have a right to give his new wife the legal status of parent, and (3) the court may indeed deny the adoption partly based on the father's exercise (see item 1) of his constitutional right to limit contact between the child and the other family members.
To be sure, there is no constitutional right to adopt a child, whether one is a stepparent or not. But in many (though not all) situations, the government is generally not allowed to condition benefits (such as the ability to adopt) on one's exercise of constitutional rights: I take it, for instance, that the government generally may not deny prospective parents the right to adopt a child on the grounds of the parents' political views. Likewise, two courts have generally held that the government may not deny prospective parents the right to adopt or to be foster parents based on their exercise of a constitutional right to engage in same-sex sexual relations, see here and here. If a parent has a constitutional right to limit visitation by other family members, is it proper to use the exercise of that constitutional right to deny him and his spouse the ability to have the spouse adopt the child? In any case, this struck me as an interesting question, and an interesting decision that was worth blogging about.
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