Eugene Volokh's Blog, page 2659

Thoughts on the Oral Argument in Messerschmidt v. Millender

(Orin Kerr)

I visited the Supreme Court this morning for the oral arguments in Messerschmidt v. Millender, a Fourth Amendment qualified immunity case I wrote about here. The transcript of the argument should be available here later this afternoon, but I figured I would post a few thoughts about the oral argument in the meantime:

(1) On the whole, the questioning left the impression that the Justice see the case as significantly closer than I was expecting. I saw the case as a relatively straightforward reverse, but the lawyers for the petitioner received a lot of push-back. The most surprising push-back was from Justice Scalia, who I read as indicating that he thought the errors in the warrant were obvious. Scalia is usually a strong pro-law enforcement vote in Fourth Amendment remedies cases, so if he's on the other side, it's hard to know where the votes will line up.

(2) Justice Kagan asked a particularly important question: What if the warrant is fine in many respects, but then has one defect in the list of items to be seized? That is, what if the warrant was sufficiently particular as to the guns, but no reasonable officer could think it was sufficiently particular as to the evidence of gang-related activity? This is a hugely important question in practice because it's unfortunately very common for warrants to have a "catch-all" entry in the list of items to be seized. An officer will write a particular warrant, and then, just to be inclusive, throw in an extra item to be seized that is overly broad. Suppression challenges based on these "catch-all" entries are common, but don't go anywhere: Courts routinely hold that even though a catch-all provision was overly broad, the evidence seized fell within one of the other (particular) items to be seized so the exclusionary rule doesn't apply. The Court may punt on this issue in Messerschmidt, perhaps by seeing it as a matter of remedies rather than general liability, but it's a hugely important question.

(3) One of the issues was whether the qualified immunity issue should be resolved differently because the officer submitted the application for review to his bosses and the prosecutors for approval. Under current qualified immunity doctrine, the answer should be "no," and I think that answer makes sense. The problem is that getting approval from another officer or a prosecutor is an uncertain check: Some will really scrutinize the materials, and others will just rubber-stamp them. Some will know the Fourth Amendment well, others won't. Given the wide variance in how much submitting the materials actually acts as a check, I don't think it makes sense for liability to hinge on the formality of submitting the materials. Of course, it's good policy to require the officers to submit the applications anyway: If the bosses or prosecutor know what they're doing, that will avoid an unconstitutional search. But I don't think the formality of the process should matter.

(4) I wonder if some of my surprise about the pushback the Justices gave the lawyer for the petitioner goes to how errors in warrants end up appearing in the appellate record. In the usual qualified immunity case, the Justices have oral testimony about what happened. That oral testimony consists in part of statements from the officers, who of course will tend to give testimony that is favorable to them. Cases based on defects in warrants are different. Warrants are legal documents, and they appear reprinted in the appendix like any other record. I wouldn't be surprised if that contexts makes Supreme Court Justices more sensitive to defects in warrants than defects in warrantless searches when applying the qualified immunity standard. Part of the dynamic may be that Justices are more sensitive to errors in legal documents, as they are used to reviewing them de novo: An error during a warrantless search may seem like an understandable error in an imagined fast-paced investigation, while an error in a legal document reprinted right there in the record might seem particularly obvious to a Justice reading the briefs in chambers years later. That might explain the Court's 2004 decision in Groh v. Ramirez, as well.

Radical Islamists Make Gains in Egypt

(Ilya Somin)

Back in January, I expressed the fear that the overthrow of Hosni Mubarak's dictatorship in Egypt might lead to a new regime that is as bad or worse than the old. I gave two reasons why this could happen: Illiberal forces in Egypt, especially radical Islamists, are much better organized than liberal democrats, and majority public opinion in Egypt is also highly illiberal, which creates the possibility of Islamists coming to power by democratic means.

The first round of the recent Egyptian elections, where Islamist parties got over 60% of the vote, at least partially substantiates these concerns. To be sure, two thirds of that went to the Muslim Brotherhood, the more "moderate" of the two Islamist parties. However, Islamist hardliners have more influence in the Brotherhood than more moderate "reformers."

If the Islamists come to power and adopt repressive policies, it's possible that they could be voted out in a future election. But this assumes that they will allow continue to hold competitive elections and allow opposition parties to operate freely. Unfortunately, it is all too likely that a radical Islamist regime would use the powers of the state to suppress opposition and ensure that it could never be voted out, as has happened in Iran. A democratically elected Islamist government could easily end up as a political system where there is "one man, one vote, one time."

It is far from inevitable that Egypt will end up with a radical Islamist government. Perhaps the still-powerful Egyptian military will prevent it, or perhaps more liberal forces within and outside the Muslim Brotherhood will get stronger. The early indications, however, are not very positive.

Big Law Firm Blogging

(Ilya Somin)

Law Daily Blogger has a list of reasons "Why Big Firms Don't Blog well." Most of the reasons aren't surprising, at least not to me. Big law firms do many things well, but they don't really have a comparative advantage in blogging. The one revelation in the post is that so many big firms seem to have blogs (41% of the Amlaw 200, according to this 2009 study), despite all the reasons why those blogs are unlikely to succeed.

UPDATE: Apparently, the Law Daily Blogger site copied verbatim — and without attribution — a 2009 post by Mark Herrmann at the Drug and Device Law Blog. I have taken down the link to the LDB post so as not to reward them for their bad behavior. My apologies to Mr. Herrmann for failing to notice this egregious copying until he brought it to my attention.

Mukasey on the ObamaCare "Recusal Nonsense"

(Jonathan H. Adler)

Former federal judge and Attorney General Michael Mukasey argues against the recusal of any SUpreme Court justices in the in the case challenging the constitutionality of the Patient Protection and Affordable Care Act.  Ideological partisans have argued that one or more justices on the other side of the ideological divide are sufficiently conflicted to require recusal.  The Left has targeted Thomas (and to a lesser extent, Scalia) for alleged spousal conflicts and (choice of dinner companions), while the Right has targeted Kagan due to her work as Solicitor General.  To each, Mukasey responds: "upon even a cursory examination of the facts it is clear that neither justice should step aside."

Of the specific standards, only two—one as to each justice—could conceivably be relevant. The one that potentially relates to Justice Kagan requires disqualification "[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy." "Proceeding" is defined to include all stages of the relevant litigation.

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.

The one provision that could apply to Justice Thomas requires recusal if the spouse of the Justice is known by him "to have an interest that could be substantially affected by the outcome of the proceeding." Under the applicable law, the "interest that could be substantially affected" does not include a rooting interest, which is the only interest hypothesized even by the justice's critics.

In my view, the complaints against Justices Thomas and Scalia are frivolous. By the standards traditionally applied by the Supreme Court, there is no question recusal is not required here. Justice Ginsburg did not recuse in tax cases, nor in cases in which the NOW Legal Defense Fund participated, and these presented closer cases than the allegations made here. (Ditto calls for Judge Stephen Reinhardt to recuse from the Prop. 8 litigation in California due to his wife's work with the ACLU.) And if attending ideologically charged dinners is a problem, some of the liberal justices would have problems here too. Perhaps a more stringent standard should be applied, but the bar for recusal should be quite high in the Supreme Court, as a forced recusal is (for all practical purposes) a vote to affirm the judgment below. This is why I think the bar for recusal should remain high.  We all know the justices have ideological priors — indeed, that's one reason they were chosen in the first place — and, as Kevin Drum noted, excessive focus on spousal career choices could have pernicious effects.

The complaint against Justice Kagan is more superficially plausible, as she worked as Solicitor General while the PPACA was in Congress and the Justice Department began developing its defense strategy.  Under normal circumstances, the former SG would need to recuse in a case of this sort.  Yet by all accounts, Kagan walled herself from participating in any meetings or strategy discussions about the PPACA, even before she was tapped for the Court. Such discussions, had they occurred, would be grounds for recusal, unquestionably. But Justice Kagan claims to have stayed out, and I see no reason to question her veracity on this point.  That she cheered the law's passage to Lawrence Tribe does not require her recusal either. Even assuming she loves the law, her personal political views do not require her to recuse any more than Justice Scalia's personal or religious views about abortion require his recusal in cases questioning the constitutionality of abortion laws.

An added note: While I believe Kagan has been forthcoming, I do not think the same can be said for the Justice Department. Documents concerning Kagan's non-role were withheld from the Senate Judiciary Committee and only later released in response to a FOIA request. Moreover, as I understand it, some documents are still being withheld under the FOIA exemption covering privileged or deliberative documents.  This exemption would seem to apply only if Kagan had actually been involved with the case. This cannot help but raise questions, but is not, in itself, a cause for recusal. The Justice Department is notoriously stingy when it comes to the disclosure of documents of this sort, yet the failure to be more forthcoming only fuels the call for Kagan to step aside.  Again, however, I believe Kagan should be taken at her word.  She has been quite diligent about recusing in cases in which she was involved, and our system relies upon Supreme Court justices to police themselves in the first instance.

Mankiw on the Student Walkout

(Jonathan H. Adler)

In a column in Saturday's NYT, Harvard economics professor Greg Mankiw responds to the student "walkout" of his introductory economics class. The column's title: "Know What You're Protesting." Here's a taste.

Eight minutes into the lecture, about 5 to 10 percent of the class stood up and quietly left. Some other students who had taken the class in previous years then walked into the room as a counterprotest. I have been told that at least one of the students who walked out sneaked back in later: he wanted to support the protest but didn't want to miss the lecture. After a few minutes, I resumed the class as usual.

So how do I feel about it?

My first reaction was nostalgia. I went to college in the late 1970s, when the memory of the Vietnam War was still fresh and student activism was more common. Today's college students tend to be more focused on polishing their résumés than on campaigning for social reform. I applaud the protesters for thinking beyond their own parochial concerns and trying to make society a better place for everyone.

But my second reaction was sadness at how poorly informed the Harvard protesters seemed to be. As with much of the Occupy movement across the country, their complaints seemed to me to be a grab bag of anti-establishment platitudes without much hard-headed analysis or clear policy prescriptions. Ironically, the topic of the lecture that the protesters chose to boycott was economic inequality, including a discussion of recent trends and their causes.

Our own Todd Zywicki commented on the walkout here.

[Note: Link to Mankiw column fixed.]

Libertarians for Huntsman?

(Ilya Somin)

It's no secret that the potential GOP presidential candidates with the greatest appeal for libertarians either stayed out of the race or haven't done very well. Mitch Daniels and Paul Ryan fall in the former category. Gary Johnson, whom I praised here, has failed to gain traction and looks like he may drop out soon. Ron Paul, of course, is still in the race. But it seems unlikely that he will improve much on his 2008 performance, when he failed to win even a single primary. And, for reasons I explained at length during the 2008 campaign, Paul has many shortcomings as a libertarian protest candidate (see also here).

Given this state of affairs, some libertarians and pro-limited government conservatives are taking another look at Jon Huntsman. Here is George Will praising Huntsman in a recent column criticizing the GOP front-runners. Athough Will is a conservative, his reasons for preferring Huntsman are all based on libertarian issues:

Jon Huntsman inexplicably chose to debut as the Republican for people who rather dislike Republicans, but his program is the most conservative. He endorses Paul Ryan's budget and entitlement reforms. (Gingrich denounced Ryan's Medicare reform as "right-wing social engineering.") Huntsman would privatize Fannie Mae and Freddie Mac (Gingrich's benefactor). Huntsman would end double taxation on investment by eliminating taxes on capital gains and dividends. (Romney would eliminate them only for people earning less than $200,000, who currently pay just 9.3 percent of them.) Huntsman's thorough opposition to corporate welfare includes farm subsidies. (Romney has justified them as national security measures — food security, somehow threatened. Gingrich says opponents of ethanol subsidies are "big-city" people hostile to farmers.) Huntsman considers No Child Left Behind, the semi-nationalization of primary and secondary education, "an unmitigated disaster." (Romney and Gingrich support it. Gingrich has endorsed a national curriculum.) Between Ron Paul's isolationism and the faintly variant bellicosities of the other six candidates stands Huntsman's conservative foreign policy, skeptically nuanced about America's need or ability to control many distant developments.

Eduardo J. Lopez-Reyes of the Republican Liberty Caucus recently wrote his own "Libertarian Case for Jon Huntsman." Libertarian political scientist Jason Sorens put in a plug for Huntsman back in May.

What do I think? I am not sure. Huntsman is nowhere near as libertarian as I am, and probably also significantly less libertarian than Gary Johnson. On the other hand, Huntsman is clearly much more libertarian than Mitt Romney and New Gingrich, the current Republican front-runners. And unlike several of the other candidates he seems knowledgeable and competent. I think it's also pretty obvious that he's more libertarian than President Obama. It's unrealistic for libertarians to expect a viable presidential candidate who agrees with us down the line. What is realistic is seeking one who will make federal policy significantly more libertarian than it is today.

Should Huntsman reach the general election, he should also be able to well. He's less likely to scare moderate voters than Gingrich, Rick Perry, or Michele Bachmann, and as far as I know he doesn't have any embarrassing scandals on his record. A candidate who is scandal-free, seems knowledgeable, and doesn't scare moderates, would have a good shot against an unpopular incumbent saddled with a bad economy.

The key question about Huntsman is whether he has any real chance of winning the GOP nomination. So far, he hasn't done well in the polls. His big problem is that people perceive him as a liberal or moderate Republican similar to Mitt Romney, even though on most fiscal and economic issues he's well to the right of Romney and sometimes Gingrich too. To date, Bachmann, Perry, and Herman Cain have all foundered in their efforts to emerge as the conservative alternative to Romney. If Gingrich, the current anti-Romney of the month, falters as well, perhaps Huntsman will get a shot at the spotlight. Obviously, however, time is running short for him.

Stopping the Stop Online Piracy Act

(David Post)

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet's defense against a spate of truly dreadful bills now making their way through Congress (the "Protect IP Act" and SOPA, the "Stop Online Piracy Act"). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who's been doing Internet law for almost 20 years, I can't remember any issue galvanizing public opinion in quite this way since the 1996 "Communications Decency Act" [outlawing "indecency" on the Net — good luck with that!]. It's quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it's gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors' Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I'm pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don't think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a "good faith belief" that an identified Internet site is "primarily designed or operated for the purpose of" infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all "technically feasible" steps to prevent it "from completing payment transactions" with customers, from "making advertisements available" to the site, and from "being served as a direct hypertext link" from within any site under the recipient's control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law — it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders — if that) if it is enacted.

Second-Hand Music?

(David Post)

Here's an interesting development: the ReDigi Used Digital Music Store. Application of copyright law's "first sale doctrine" — which allows you to re-sell or give away copies that you have purchased of books, records, or other copyrighted works without the copyright holder's permission (the doctrine that allows, for instance, used book stores or video rental stores to operate without payment of any additional royalties to the copyright holders) — to digital works has always been something of a puzzle. On the one hand, there's a strong argument that the Copyright Act treats copies of works embodied in digital files the same way it treats copies of works embodied in print or on canvas; on the other hand, the fact that digital files are so preposterously easy to copy means that it's awfully easy to circumvent the law by "re-selling" a digital file you've purchased while still retaining a copy for yourself — which is not within the protection of the first sale doctrine.

So along comes ReDigi. Their claim is that they'll let you re-sell all that crappy music you downloaded during a drunken spree the other night — if you install their application on your computer, which will do a scan and certify that you haven't kept any copies of the file around. [See the story in the NY Times here] Clever!! If you really have disposed of your copy of the file in question, it's hard to see how the copyright holders can complain (though complain they will — book publishers still hate the 2d-hand bookstores . . .).

But there's one thing I'm not clear about. Suppose I purchase a song at iTunes, stick a copy on my hard drive and a duplicate in my "locker" on the Apple iCloud server. Then, I resell the file at ReDigi — and once I delete it from my hard drive, the ReDigi application will never know that I've put a copy in the cloud, right? And if that's the case, it's really not a first-sale-doctrine-applicable transaction at all ...

Exam-taking mistakes:

(David Post)

After many years of thinking about the problem, I've finally tried to distill what I know about the kinds of mistakes law students are particularly prone to make here: Exam-Taking Mistakes. It's a handout for my Intro to IP students this semester, and it might be a little IP-specific to be terribly useful to others in other subject areas, but I think it might be of some general interest and utility. Feel free to share and redistribute —

Montserrat Figueras, 1942–2011

(Kenneth Anderson)

I am saddened to learn of the death of Montserrat Figueras, the great Catalonian early music singer.  With her husband, gambist and conductor Jordi Savall, she was a central part of the great early music revival of the past few decades.  (A VC reader adds this recollection of Figueras' appearances in the Bay Area; thanks.) Here, one of Figueras' most widely admired (or, anyway, one of my favorite) recordings, Yo soy la locura.

Yo soy la locura

la que sola infundo

placer y dulzura

y contento al mundo.