Eugene Volokh's Blog, page 2665
November 26, 2011
Yet Another Issue Where Barack Obama and I Agree
I have an occasional series of posts highlighting issues where Barack Obama and I agree. So far, the list includes creating a playoff system for college football, allowing gays in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president's right to forego defending federal statutes he believes to be unconstitutional, and that that the Obama health care plan's individual mandate is not a tax.
I am happy to announce that we have another addition to this distinguished list. Both Obama and I are happy that the NBA lockout seems likely to end soon:
NBA owners and players reached a tentative agreement early Saturday to end the 149-day lockout and hope to begin the delayed season on Christmas Day.
Neither side provided many specifics but said the only words players and fans wanted to hear.
"We want to play basketball," NBA commissioner David Stern said....
President Barack Obama gave a thumbs-up when told about the tentative settlement after he finished playing basketball at Fort McNair in Washington on Saturday morning.
The shortened season might end up helping veteran teams like my Boston Celtics against younger ones like the Chicago Bulls (Obama's favorite team). Our agreement on basketball issues might collapse if the president again tries to undermine the confidence of Celtics point guard Rajon Rondo:). Hopefully, Obama won't want to alienate Celtics fans during an election year.
UN Report Alleges Large-Scale Human Rights Abuses by the New Libyan Regime
A recently leaked United Nations report claims that the new rulers of Libya have committed numerous human rights violations:
Thousands of people, including women and children, are being illegally detained by rebel militias in Libya, according to a report by the Secretary-General of the United Nations. Many of the prisoners are suffering torture and systematic mistreatment while being held in private jails outside the control of the country's new government.
The document, seen by The Independent, states that while political prisoners being held by the Gaddafi regime have been released, their places have been taken by up to 7,000 new "enemies of the state", "disappeared" in a dysfunctional system, with no recourse to the law.
The report will come as uncomfortable reading for the Western governments, including Britain, which backed the campaign to oust Gaddafi....
The report says that "while political prisoners held by the Gaddafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary."
Of particular worry was the fate of women being held for alleged links with the regime, often due to family connections, sometimes with their children locked up alongside them.
"There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults," says the report.
A number of black Africans were lynched following the revolution following claims, often false, that they were hired guns for the Gaddafi regime.
I have long expressed the concern that Libya's new rulers might turn out to as bad or worse than the old (e.g. here and here). The leaked UN report provides further evidence showing that such concerns have a reasonable basis.
However, there are two important caveats. First, the UN is far from a completely reliable information source when it comes to human rights issues. Its record on such matters is a very poor one. The UN Human Rights Council, for example, is often stacked with egregious human rights violators, and, until recently, actively promoted violations of religious freedom and freedom of speech. Given the UN's dubious record, it's certainly possible that this report is either wrong or at least exaggerated. Second, even if the report is correct, the new Libyan regime might still be less bad than the old. Even a government that falls well short of being a paragon of liberal democratic virtue can still be better than Gaddafi's dictatorship was.
Despite these important caveats, the new Libyan government certainly isn't looking too good so far. And if radical Islamist elements in its leadership get the upper hand, things might get a lot worse before they get better.
The jury is still out on whether NATO intervention in Libya will achieve its original objective of improving respect for human rights in that country. The new Libyan government might yet clean up its act, or be forced to do so by Western pressure. On the other hand, President Obama's war in Libya may turn out to have been counterproductive as well as illegal.
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Paying Too Much for an Unneeded Smallpox Drug that Can't Be Tested
This past Spring the federal government awarded $4e3 million for the development of a new smallpox drug, at an inflated cost, after a non-competitive bid, even though a new drug is unneeded and cannot be tested. Smallpox has been eradicated, for all practical purposes, and the government already has substantial vaccine stockpiles. With no actual smallpox cases, the new drug can't be tested, and yet the federal government was apparently willing to pay over $250 per dose. By comparison, the vaccine costs approximately $3 per dose. It's no wonder Senator Claire McCaskill (D-Mo) is seeking an investigation.
The Political Battle Over Eminent Domain Reform in Virginia
Virginia was one of several states that enacted a strong eminent domain reform law after the Supreme Court ruled in Kelo v. City of New London that it was permissible for government to take private property and transfer it to other private individuals in order to promote economic development. Supporters of the Virginia law are now trying to incorporate it into the state Constitution. But, as the Washington Times reports, they are beginning to encounter resistance from local governments, which have a vested interest in keeping their eminent domain authority as broad as possible [HT: VC reader James Taylor]:
A state constitutional amendment to expand Virginia's eminent domain laws is meeting local resistance, with the city of Alexandria agreeing to contribute as much as $5,000 for a lobbying firm to help fight the legislation.
The amendment, sponsored for the 2012 General Assembly session by Delegate Rob Bell, Albemarle Republican, attempts to change the Virginia Constitution by updating a law enacted in 2007 that says private property can be taken only when the public interest dominates the private gain, among other conditions.
"The goal is to put [the amendment] into the constitution so that it can't be tinkered with," Mr. Bell said....
The amendment passed with wide support during the 2011 General Assembly session, with help from Mr. Bell. It cleared the House by a vote of 83–15 and the Senate by a vote of 35–5.
But to amend the state constitution, the measure must pass again in the assembly before going to the public as a voter referendum on the 2012 ballot.
Despite the broad support, Mr. Bell said, amendment supporters are girding a fight.
"We are not taking anything for granted," he said....
Mr. Bell said, the impetus was to protect property owners.
"The local governments were certainly opposed to the original statute and claimed it would bring along the end of the world," he said. "Of course, it hasn't.
When it comes to property rights, Virginia's present constitution is one of the least protective in the country. Article I, Section 11 gives the state legislature virtually unconstrained authority to "define" what qualifies as a "public use" that justifies taking property by eminent domain. Essentially, the legislature can license the condemnation of property for virtually any reason it wants. Few if any other state constitutional rights are left so completely to the mercy of the very state officials they are supposed to protect us against. It would be as if the legislature had total discretion to determine what kind of speech can be censored or when police are authorized to search your home.
In the short term, it doesn't matter much whether eminent domain in Virginia is constrained only by strong statutory restrictions or by a constitutional amendment. But in the long run, a constitutional amendment would be a vital safeguard against the gradual erosion of property rights. Effective post–Kelo reforms like that in enacted in Virginia are the product of an unusual upsurge in public attention focused on eminent domain issues. Most of the time, the vast majority of "rationally ignorant" voters pay little or no attention to the issue. Even in the immediate aftermath of Kelo, many states enacted ineffective laws in part because voter ignorance makes it difficult for the electorate to tell the difference between genuine reforms and those that only pretend to constrain economic development takings.
As Kelo recedes into the past, public attention will understandably focus on other matters, and influential interest groups can lobby state legislators to gradually roll back post–Kelo reforms. The public might not even notice what is happening, just as most of them were unaware of the prevalence of Kelo–style takings in many states before the Supreme Court focused a national spotlight on the issue in 2005. A state constitutional amendment can help forestall this kind of gradual erosion of property rights. Unlike some other state constitutions, the Virginia Constitution is relatively difficult to amend. Thus, it will be much harder to roll back a constitutional reform than a purely statutory one.
UPDATE: Richmond Times-Dispatch columnist A. Barton Hinkle has a good column about the proposed Virginia amendment here.
November 25, 2011
How the War on Drugs Creates Perverse Incentives for Police
Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:
Arresting people for assaults, beatings and robberies doesn't bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.
"The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats," said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.
"When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside," Downing said.
And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look "suspicious," frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They're tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were 536,322.
Several NYPD officers have alleged that in some precincts, police officers are asked to meet quotas for drug arrests. Former NYPD narcotics detective Stephen Anderson recently testified in court that it's common for cops in the department to plant drugs on innocent people to meet those quotas — a practice for which Anderson himself was then on trial.
At the same time, there's increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault.
Even when police officials don't consciously prioritize drug crimes ahead of violent crimes, the vast expenditure of law enforcement resources on the former probably reduces the amount of police effort that can be devoted to the latter.
Later in the article, Balko notes that the War on Drugs also incentivizes police departments to shift resources away from violent crime because drug busts allow them to earn extra money through asset forfeiture, while solving violent crime usually does not:
The most perverse policy may be asset forfeiture. Under civil asset forfeiture, police can seize property from people merely suspected of drug crimes. So long as police can show even the slightest link of drug activity to a car, some cash, or even a home, they can seize it. In the majority of cases, most or all of the seized cash goes back to the police department. In some cases, the department has taken possession of cars as well, but generally non-cash property is auctioned off, with the proceeds then going back to the department. An innocent person who has property seized must go to court and prove his property was earned legitimately, even if he was never charged with a crime. The process of going to court can often be more expensive than the value of the property itself.
Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust.
I wrote about the ways in asset forfeiture threaten constitutional property rights here.
Weird Comment by Justice Stevens
From the Oct. 31 issue of Time, re Citizens United:
I feel strongly that the court made a serious mistake in finding that money is the equivalent of protected speech. If followed out to its logical conclusion, that would have provided First Amendment protection to the Watergate burglars. They were financed with campaign expenditures.
Huh?
Israel's Latest Crime?
According to leftist gay [judging by this piece, she obviously cares much more about leftism than about gay rights] activist Sarah Schulman, it's the following: "Last year, the Israeli news site Ynet reported that the Tel Aviv tourism board had begun a campaign of around $90 million to brand the city as 'an international gay vacation destination.'"
I kid you not. Schulman, it should be said, is making something of a hobby of being a leading member of what has to be the rather small club of "Jewish lesbians for Palestine." Here's a short (and dishonest) video of her attacking Israel as "unprogressive."
Professor Schulman, if you happen to read this, I have an offer for you: I will pay for your ticket to Israel and accommodations, if you will agree to live among your "progressive" allies as an openly gay Jewish woman in Gaza for one month. But my offer is a bit disingenuous, because it's very unlikely that I would need to pay out for more than a one-way ticket, and a few days of accommodations.
LAT on Justice Scalia and Criminal Defendants
David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia. In recent years he has led the charge for more strict enforcement of the Sixth Amendment's confrontation clause. This is but one example of how originalist approaches to constitutional interpretation do not always produce "conservative" results. Justice Scalia's commitment to his understanding of the Constitution's original meaning is not all that's at work here, however. His commitment to formalism, and the imposition of bright-line rules, is even greater. Indeed, the best way to understand the current Court's division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.
CIA Officers Memorial Foundation Seeks Donations
The CIA Officers Memorial Foundation is seeking donations to provide educational support for children of CIA officers killed in the line of duty:
CIA officers are asking people to mark the 10th anniversary of the death of the first American killed in the Afghan war by donating to help the children of their fellow fallen. Since the death in 2001 of CIA officer Mike Spann, a total of 23 stars have been added to the wall at the CIA's Langley, Va., headquarters that honors CIA operatives lost. Many were killed in the wars in Afghanistan and Iraq.
The clandestine world rarely breaks its silence, especially when it comes to family, but the CIA Officers Memorial Foundation notes about 56 children of those killed in the line of duty will need educational support over the next 17 years.
November 24, 2011
The Eurozone Crisis Is Also a Governance Crisis — Isn't It?
Over the last few months, as the eurozone crisis has gathered steam, I have wondered (here and at the international law blog Opinio Juris) what the crisis means for the governance structures of the EU. One answer is, not much — the political leadership will somehow muddle through as it always does, on the basis of discretionary deals among the national leaders of European states. Then the institutional arrangements will be adjusted after the fact to reflect whatever happened in the politics of the event.
In that case law, in the sense of legally binding governance arrangements, is epiphenomenal on political contingency which, in this case, is contingent upon relations with the financial markets, which is to say, upon the willingness of lenders to continue to lend and roll over debt. Even something as apparently legally binding as the ECB's charter turns out not to be legally binding on any ordinary reading of it. On this account there's not a lot to say from the standpoint of governance theory or institutional governance arrangements because the EU's lawyers will not know how to (re-)arrange the legal furniture until afterwards. The role for the governance lawyers is the lawyer-as-scribe; the legal rules are post-hoc and revisable according to the contingencies of politics.
This does not seem to me a plausible way of looking at the role of legal rules; if it were, it seems unlikely to me that European states would have been lent this amount of money by investors globally. Why not? Because investors don't like to lend into discretionary legal regimes, for obvious reasons. But leave that aside. I have raised these points before, and have been nonplussed by how little commentary there is by European public lawyers on the question of institutional design, exit from the Eurozone, etc. This, even as it appears from various leaked documents that various important national and EU agencies are indeed privately trying to plan for various contingencies — as legal experts who must devise new structures of rules, institutions, and law and, just as crucially, a way from here to there, if that is what happens, and a way that best preserves institutional legitimacy and minimizes what might be catastrophic economic disruption if institutions break down and fail.
If there is regular commentary by the academics and intellectuals in the EU, I would be grateful to hear about it and find out where to read it. I read Peter Lindseth closely, and David Bosco at Multilateralist is always good, but I cannot find a lot of constitutional design voices in Europe weighing into this. I would have thought that the same community of academics that produce much scholarship on constitutionalism in the EU would tell us what the legal and institutional options are. Martin Holtermann, commenting here on my earlier posts, has done as good a job in a few paragraphs as I've read, giving an account of how the discretionary summitry is all okay within governance structures of the EU. But I would like to read more and in much more depth; if you can tell me where it is, I would be grateful. I am not an EU lawyer or theorist of the EU; I don't pretend to know all of this stuff myself.
What worries me is that when I pose this question to the very smart EU scholars I know, there is a shrug as if to say, this isn't about the stuff of political governance or "real" constitutionalism at all — this is just about money and the institutions that manage money. Whether Greece is in or out of the euro is not all that important; the euro is not all that important, it's just a currency. The real EU is not about money, it's about values. The law that matters to EU constitutional theory is not about the ECB, but instead the European Court of Human Rights. No matter what happens to credit ratings, the Eurozone banking system, Greece or even Italy in the sense of in or out of the eurozone, the ECJ and ECtHR will continue to issue rulings on human rights issues, and those are what actually matter. One can have a sanguine attitude toward the economic aspects — and indeed not have any understanding of them — and still regard governance of the EU as same as it ever was, because the things that make the EU the EU are its ideals and values, not mere money.
I caricature my friends, no doubt. But caricature or not, this strikes me as dubious at best. As we marxists like to say, money is never "mere." Of course money, banking, credit, etc., are at the heart of the governance project, because they structure the material — and, come to it, the moral and spiritual — conditions of the rest of it. Are these conditions really unrelated to the legitimacy, weight, impact and force of such institutions as the ECtHR? Now, I do understand a reluctance to opine, particularly in an academic, as distinguished from immediate policy, way on events that are unfolding now and are quite uncertain at this moment. Fair enough. But I don't even see much policy discussion of what all this stuff is supposed to mean in terms of legal governance, at least in the places I would normally consult.
One is tempted to conclude, at this point, that the political theory of the EU today is being written by financiers and financial analysts in their credit reports. They are anxious, after all, only secondarily about markets. They are primarily anxious about governance and structures of governance — because the markets are trying to figure out whether the institutions of the EU and its members are serious about their legal and political commitments, and in what ways and to what extent. The state of the markets depends upon the state of these several institutions. And the state of the institutions — given that the legal rules and their application is apparently deeply in flux, unless one simply assumes that the rule of law is whatever discretionary action European leaders decide upon this week — is a matter of conjuring forward the political theory of these institutions.
So they, the financiers, are conjecturing the possible governance futures of the eurozone and the EU. They are market analysts reluctantly turned political theorists because it is political theory that suggests one path or another for the application of legal regimes that appear to be much less determinate than once thought. For George Soros, the move from one to the other is natural and logical; for most credit analysts and hedge fund managers, this is a strange turn indeed.
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