Eugene Volokh's Blog, page 2657
December 7, 2011
English Court: "Kill the White Slag" Attack Wasn't Racially Motivated
From The Telegraph (UK):
The four defendants shouted "kill the white slag" as they attacked Rhea Page after dragging her to the ground.
Ambaro Maxamed, 24, her sisters Ayan, 28, and Hibo, 24, and their cousin Ifrah Nur, 28, faced up to five years in jail after admitting causing actual bodily harm.
But Judge Robert Brown gave them six-month suspended sentences after deciding that the attack in Leicester city centre was not racially motivated.
He heard in mitigation that the four were not used to alcohol because their religion [Islam] does not allow it....
James Bide-Thomas, prosecuting, said Ambaro Maxamed called Miss Page a "white bitch" and grabbed her hair, making her fall.
Metro writes:
Ms Page said her assailants screamed 'kill the white slag' while kicking her in the head as her boyfriend Lewis Moore, 23, tried to fight them off after a night out in Leicester in June last year.
'They were taking turns to kick me. I was lying on the ground the whole time, crying and screaming. It was terrifying. I thought they were going to kill me.'
She suffered bruises and grazes to her head, back, legs and arms, and had clumps of hair pulled out, Leicester crown court heard.
It's always hard to evaluate such cases based on press accounts, but if the story is accurate and sufficiently complete, the sentence — and the conclusion of lack of racial motivation — strikes me as unsound. (I don't believe that sentences should generally be enhanced because of racial motivation, but to my knowledge English law, and the law of most American jurisdictions, disagrees with me on that.)
Simply considering whether defendants might have acted in an aberrant way because they were unused to drink might reasonably be relevant at the sentencing phase. Judges can plausibly consider whether defendants' s behavior was a truly out of character for them, even if the precipitating cause (e.g., an unusual for them bout of drinking) was their own fault; that doesn't excuse the crime, but it may bear on whether to sentence the person to a longer term or a shorter one. And when one is deciding whether the defendants were indeed unused to drink and on a rare bout of drinking, evidence of their religion might help support such a claim as a factual matter. But criminals who acts the way the defendants apparently acted (assuming the victim's account is accurate) strike me as meriting a considerably more serious sentence even if they were acting in a rare moment of drunkenness.
Thanks to Ken Braithwaite for the pointer.
In Re Stephen Glass, It's Chuck Lane's Opinion that I'm Interested In
Charles Lane being the New Republic editor at the time of Glass's principal "fabulisms." Jack Shafer has done an excellent job going through documents in the matter of Stephen Glass seeking a license to practice law in California; once it was taken up by the California Supreme Court, the documents related to the bar matter became public, and Shafer has read them. It's a lengthy and, if you have a taste for therapeutic explanations, fascinating tale; Glass seems to be pleading mostly a bad childhood with Tiger Mom & Dad creating insecurity and deep phobias that made it seemingly irresistible to say whatever was needed to succeed.
The concern of the California bar committee that originally rejected his application seemed to have been rather more concerned with what it saw as sparse evidence that he was actually sorry for what he did or was instead merely strategic in the aftermath. "Fabulism," after all, is a remarkably loaded, or if you like, unloaded way of describing what one might otherwise call bare-a***d lying. Shafer is circumspect in his own views, but notes that a slew of law partners and law professors — including Opinio Juris' very own Kevin Jon Heller — have all endorsed his fitness to practice. He also, however, notes just how deeply unattractive a lot of Glass's arguments are. Let's just say I'm not persuaded; however, the person whose opinion most interests me is the eminently decent and sensible Chuck Lane.
Glass actually won his appeal and had the bar's panel rejection overturned by a California appellate judge; it takes four justices of the seven person California Supreme Court to take an appeal, so it suggests that there is some contrary concern there. In any case, perhaps it's in the original article and I missed it, and I do not know if this is true, but someone tweeted me to say that even without benefit of a law license, Glass is currently earning $154k as a paralegal. Comments are open.
Copyright Law and European Compilations of U.S. Jazz Recordings
I recently noticed that some U.S.-based merchants, such as Amazon, are selling imported collections of U.S. jazz recordings from the 1950s and early 1960s at extremely cheap prices: Typically, sets of 8 different albums put on 4 CDs are being offered at $15 for the entire set. For example, there's "Hank Mobley: Eight Classic Albums," featuring 8 of Mobley's Blue Note albums, on sale for $15.72; or, if you prefer, "Cannonball Adderly: Eight Classic Albums," featuring 8 of Adderley's albums, for $14.14. This seems to be a new development. The compilations mostly were released in the last few months, from labels with names like "Real Gone Jazz" and "101 Distribution."
My question is, are these recordings lawful to purchase in the United States? I realize I'm old-fashioned in caring about complying with copyright law. To the hipsters, it seems, "buying music lawfully" is like wearing pleated pants. But my sense is that these recordings are not licensed by the copyright owners in the United States, where the works are still under copyright. Rather, my guess is that they are taking advantage of the fact that copyright in the EU has used a 50 year term, which is about to increase to 70 years. So recordings from the 1950s through 1961 are now in the public domain in Europe, as I understand it, and Europeans can therefore copy CDs, package lots of public-domain recordings together, and then sell them at very low cost to those in the U.S. through sites like Amazon.
So my first question is, am I right that this is what is happening? And second, if I'm right, does U.S. law prohibit purchasing recordings made where the items are in the public domain, albeit purchased from where they are still copyrighted, and then playing them in the U.S. where they are still copyrighted? Copyright nerds, what say you?
US Citizen Indefinite Military Detention in NDAA?
I've been asked the question as to whether the National Defense Authorization Act (NDAA) permits indefinite detention of US citizens, and whether, if it does, it adds anything to existing law on US citizen detention. The quick one line answer is that, at least in the Senate version of the bill, it permits military detention (and, by implication and absent other considerations of law, detention to the end of hostilities), but only to the extent that existing law already does. The Senate version of the bill says it merely affirms that status quo on this issue.
I am going to crib extensively from Robert Chesney, writing today at Lawfare. (Lawfare, a project of the Brookings Institution and Harvard Law School, and founded by Benjamin Wittes, Robert Chesney, and Jack Goldsmith, is the go-to online daily journal on national security law; careful, measured, never crazy, and scrupulous about separating objective description from prescriptive comment. I serve as the Reviews editor, full disclosure. Lawfare is currently doing a side by side comparison of the House and Senate versions of the bill, if you want the technical details.) Says Chesney regarding military detention of US citizens:
On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.
Chesney then goes on to offer three scenarios in which the government could, in theory, attempt to hold a US citizen in military detention. They are important to keep separate, and to attend to Chesney's conclusion:
There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.
First, it might try to detain a citizen who is an arms-bearing member of the enemy's forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).
Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O'Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.
A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We've not had a case like that yet, so it seems to me we'd have to say the law is at least somewhat unsettled as well.
So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.
So, strictly speaking, that describes military detention. But the original question was about indefinite detention, so let's be clear on the relationship. Military detention points to at least the possibility of indefinite detention in this context because, broadly speaking, valid military detention is allowed until the conclusion of hostilities, which makes it potentially indefinite even without charges, trial, or judicial review, and absent any other consideration of law. Here, from an earlier Chesney post at Lawfare, is how Feinstein described the conundrum and her own amendment to the Senate version of the bill (I've added some italics):
Despite my [Senator Feinstein's] support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this. The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until "the end of the hostilities" which, in my view, is indefinitely.
Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.
Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:
On page 360, between lines 21 and 22, insert the following:
"Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."
This compromise amendment passed in the Senate version of the bill. As Chesney notes in this earlier post, there are other considerations of law regarding detention in any case, so that any detention authority has to be qualified at a minimum by habeas rights. (Chesney is responding here to an article by Conor Friedersdorf at the Atlantic; he quotes from Friedersdorf's claim that the NDAA would allow the President to indefinitely detain even US citizens without judicial review):
Specifically, [Friedersdorf] suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:
"Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn't present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering "he's a terrorist" is enough. Yes, even if the suspect is an American citizen."
This is simply not so, however, given the availability of habeas corpus review. Any citizen held in military custody anywhere, regardless of where captured, will have such review. Any non-citizen captured in the United States will have such review. And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well. Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always been the case in all combat zones in which the U.S. has ever taken prisoners.
Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late. I disagree with that view very much. There is a lot of room for debate about whether the Circuit's jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain "domestic enemies" is simply not tenable, in my view.
I agree with Chesney's view on the substantive issues above; there is one clear circumstance in which military detention of US citizens is permitted, and two legally unclear scenarios; there is also habeas review by the courts. The Senate version of the bill does not alter that status quo, but kicks it back to the courts to decide as to the unclear scenarios.
Lastly, I'd add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US's de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that. If you want to follow the jurisprudence of the DC Circuit in these habeas and related cases, Lawfare is required reading for journalists, policy people, academics, and government officials. (I've left comments on for this post.)
Time Magazine: OWS Number 1 News Story of 2011?
Tempted though I am to crowd-source my Business Organizations exam and invite the Conspiracy commentariat to write it for me, I instead refer you briefly to this end-of-year list from Time Magazine, naming Occupy Wall Street as the most important news story of 2011. (I suppose it is not completely clear whether being number one on the list of ten means most important, but that's what it looks like to me, looking at how this and the rest of the top ten stories are written.) Indeed, so important does Time see this story that they headline it, "Occupy Wall Street Protests Spread." OWS protests are spreading? Regular readers know that I have particular views on the ideological and intellectual configuration of OWS, but leaving that aside, I invite comment on the question of whether, like OWS or hate it, you would agree with Time that this is the, or at least a very, top news story of 2011. Alternative nominations also invited. Or you could draft my BA exam.
Going Off the Rails Against the REINS Act
Today the House of Representatives is expected to vote on the REINS Act, a bill to enhance political accountability over regulatory decisions. The bill has two essential features. First, it bars new "major" regulations (those anticipated to cost more than $100 million annually) from taking effect unless approved by both houses of Congress. Second, it creates an expedited review process that forces each house to vote on each major rule. So while requiring Congressional approval, REINS prevents members of Congress from ducking their responsibility to vote yay or nay.
REINS is a controversial bill, in part because it effectively limits the delegation of broad regulatory authority to federal agencies, but to read some critics, REINS would usher in an anti-regulatory armageddon. While I support the legislation, for reasons detailed in these posts (and summarized in this NRO piece), I recognize that there are reasonable arguments to be made on the other side. What's so interesting watching this debate, however, is how many opponents refuse to make them, relying instead on inaccurate and fanciful characterizations of the bill. It's telling when opponents of legislation are unable or unwilling to describe it accurately when making their case.
To take one example, US PIRG's Ed Mierzwinski argues that the REINS Act would lead to unsafe toys on the market and emasculate the CPSC.
One bill, the REINS Act, would not only allow but require congressional meddling in the implementation of all public health and safety rules. A single member of Congress, at the behest of some powerful special interest or campaign contributor, could block the public database, block science-based lead standards for children's products, block crib safety rules or any number of protections that provide a safer consumer marketplace.
The idea that REINS would allow a single member of Congress to block new regulations is a common claim. The Center for American Progress makes it here. It's also false. The bill expressly limits debate, waives procedural objections, and requires a vote on the merits. Under REINS, if some members of Congress wish to block needed safety rules at the behest of a special interest, they will have to do it out in the open, and will only succeed if they can win a majority vote. How could this undermine legislative accountability? It's true REINS requires that legislative approval occur within a set period of time, but it also ensures the vote occurs before the deadline expires.
The NYT worries REINS will "undermine the executive branch." Really. Why? Because it will be too easy for a majority in either House to prevent a President from rewriting regulatory requirements. The NYT also argues REINS is "deeply undemocratic." Got that? Requiring legislative votes on major regulations — that two or three of the most consequential regulatory decisions made by federal agencies — is "undemocratic," whereas allowing agencies to rely upon decades-old statutes to remake industries and reconfigure whole sectors of the economy is not.
The REINS Act would dramatically alter how major rules are made, but it would do so by making sure the people's representatives have a greater say on — and greater accountability for — the major regulatory actions our federal government takes. If the public wants greater regulation of environmental or other problems, REINS won't stand in the way. Only if the public is skeptical of such regulations, or unconcerned by legislative vetoes of proposed rules, will REINS slow down the adoption of new rules. And perhaps that's what the REINS Act's opponents are truly afraid of: A regulatory process that more accurately reflects what the public wants.
UPDATE: For unhinged commentary on the REINS Act, it's hard to do better than this piece which, among other things, claims the Act would "essentially return environmental regulation to 1890s standards – when corporations polluted with impunity." That's an astounding charge given that REINS a) does not have any effect whatsoever to regulations already on the books and b) would apply equally to deregulatory initiatives, such as any effort by a future President to repeal existing regulations.
Obama's Progressive Mythology
Well, yesterday was certainly a good day for one of my least favorite American politicians of the twentieth century, Theodore Roosevelt, who combined gross economic ignorance with an almost adolescent jingoism. GOP frontrunner (!) Newt Gingrich has (once again) declared himself to be a "Theodore Roosevelt Republican" (though disclaiming the more socialistic Roosevelt of his post-presidential career) while President Obama, in a much ballyhooed speech, lavished praise on post-presidential Teddy for recognizing the need to add many layers of regulation to the free market.
But the main topic of this post is President Obama's acceptance and elaboration of Progressive mythology about pre-Progressive America, the America of the late nineteenth and early twentieth century, before a wave of Progressive and World War I inspired regulation significantly increased the role of government in American economic life.
Here's Obama:
You see, this isn't the first time America has faced this choice. At the turn of the last century, when a nation of farmers was transitioning to become the world's industrial giant, we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies that kept prices high and wages low? Would we allow our citizens and even our children to work ungodly hours in conditions that were unsafe and unsanitary?
This line of thought goes back to the Progressive era itself. As I point out in Rehabilitating Lochner: "Progressives were convinced workers' living standards were falling, and were in constant danger thanks to unregulated immigration, unregulated labor markets, and a paucity of strong labor unions. Supporters of liberty of contract, by contrast, believed that workers' lot, though often unpleasant, was gradually improving thanks to the American system of contractual freedom."
Contrary to the implications of Obama's speech, the latter group seems to have had the better of the argument. Despite massive immigration during this period and despite (or maybe because of) the lack of labor regulation and low unionization, best estimates are that real wages in manufacturing in the U.S. increased almost 40% between 1890 and 1914. Lawrence H. Officer, Two Centuries of Compensation for U.S. Production Workers in Manufacturing (2009); Albert Rees, Real Wages in Manufacturing 1890–1914 (1961). [Update: I don't have statistics handy, but working hours were going down without government intervention–for example, few bakers, the subject of the 1895 ten-hour a day law invalidated in Lochner, worked more than ten hours by 1910–and child labor was declining rapidly outside the impoverished Deep South.]
Oddly enough, Obama also praises Roosevelt for supporting a minimum wage for women. Chapter 4 of Rehabilitating Lochner describes the impetus for such laws, and much of the relevant the information in that chapter can be found in this paper published in Law and Contemporary Problems. The history is too rich to give an adequate summary here. Let's just say that the history of such laws is not pretty. The laws' primary supporters included male-only labor unions that wanted to keep women out of the workplace–women-only minimum wage laws almost never passed without strong from unions that typically opposed minimum wage laws for men; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children's Hospital, women who wanted to work but could not command a government-imposed minimum wage were "semi-employable" or "unemployable" workers who should "accept the status of a defective to be segregated for special treatment as a dependent."
December 6, 2011
George Orwell on Democracy and Political Ignorance
Bryan Caplan has a interesting post on George Orwell's portrayal of democracy in his classic work Animal Farm. As Bryan notes, the initially egalitarian and democratic regime established by the animals gets subverted in large part because of political ignorance. Like Bryan, I would be interested to know more about Orwell's view of real-world democracy. Did he believe that the problem of political ignorance could be overcome by education or some other means? Or perhaps he thought that the problem of ignorance was irremediable, but democracy was still the best form of government. Given that he remained a socialist to the end of his life, Orwell obviously could not adopt my and Bryan's preferred solution of limiting and decentralizing government in order to mitigate the problem.
It's also interesting to note that Orwell's portrayal of democracy at Animal Farm was actually far more positive than the Soviet history he based the novel on. Unlike Animal Farm, the USSR was a brutal totalitarian state from the start and was never democratic. Opposition parties (including even left-wing socialist ones) were suppressed from the beginning, and there were never any free elections or any direct democracy of the kind Orwell depicts.
I'm not sure whether Orwell deviated from Soviet history on this point in order to make a statement about democracy or because he was in thrall to the view (common among anti-Stalinist Western leftists in his day) that the Soviet experiment only went awry under Stalin. His modestly favorable portrayal of Snowball — the pig who serves as an analogue to Trotsky — is compatible with the latter idea, though Snowball is not a completely positive figure in the novel. Some degree of rot is evident even in the "pre-Stalinist" era at Animal Farm, though the animals are described as "happy as they had never conceived it possible to be" during this period. In reality, large-scale totalitarian repression began under Lenin, not Stalin. And the real Trotsky was almost as bad as his rival, in some ways even a little worse.
Blawg 100
I'm pleased to report that the American Bar Association Journal listed us in their Top 100 law blogs list (in the Opinion category). The Journal is currently conducting voting for the best in each category, and while it is a bit crass for me to ask you to vote for us, let me be crass and ask: Please vote for us! While naturally we're honored by the nomination, and would be by winning in the category, for us it's not about the honor — we want eyeballs (yummm, eyeballs ...), and we figure that extra publicity generated by being listed as the top blog in the category would mean more eyeballs.
I should warn you, though, that voting in the Top 100 now requires a free registration, though I found it to be very quick and easy.
Jeffrey Toobin on the Big Legal Stories of 2012
Over at the New Yorker, Jeffrey Toobin offers a short, breezy look at litigation likely to get a lot of public attention and debate next year. His "coming year's top five legal stories" are
Health care reform cases
Same sex marriage in California
Affirmative action
Football
Celebrity arrest
I don't have an opinion; the legal issues I follow aren't typically litigation oriented and are not much related to public attention; it doesn't seem likely that the Alien Tort Statute in the Supreme Court would make anyone's list but mine. But this is a list not about true, deep or lasting significance, whatever exactly that means, but about media and public attention. It's also not limited to SCOTUS. Within that take on "big legal stories," what is your list of five for 2012? Comments are open.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
