Eugene Volokh's Blog, page 2666
November 24, 2011
Happy Thanksgiving, Everyone
And here from our house in DC, we give thanks for the blue and sunshine beauty of the day, the moist and tender deliciousness of the turkey breast I cooked at 500 degrees F and all the dishes prepared by Beloved Wife and Everyone Else, for the attendance of my sister and her family at dinner, for friends and family, and much else besides. Congratulations to Megan McArdle on her ten years of blogging this week. And, not least, I give thanks that the track at American University is only a block away from my house. I hope your holiday was a peaceful and lovely as ours.
Give Thanks — It's Good for You
John Tierney explores yet another reason to be grateful: It will make you feel better.
Thanksgiving may be the holiday from hell for nutritionists, and it produces plenty of war stories for psychiatrists dealing with drunken family meltdowns. But it has recently become the favorite feast of psychologists studying the consequences of giving thanks. Cultivating an "attitude of gratitude" has been linked to better health, sounder sleep, less anxiety and depression, higher long-term satisfaction with life and kinder behavior toward others, including romantic partners. A new study shows that feeling grateful makes people less likely to turn aggressive when provoked, which helps explain why so many brothers-in-law survive Thanksgiving without serious injury.
November 23, 2011
Trial Court Upholds Canada's Anti-Polygamy Law (Except as to Prosecution of 12-to-17-Year-Old Spouses)
Note that the law criminalizes polygamy, rather than just refusing to recognize polygamous marriages. Here's the summary from Prof. Howard Friedman (Religion Clause):
In Canada, [a British Columbia trial court] today upheld most of Canada's anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province's attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions....
In today's decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), [the trial judge] concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17.... [EV notes: This means that those children can't be prosecuted for violating the law when they have entered into polygamous marriages — people who enter into polygamous marriages with them can still be prosecuted.]
The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans — as protected by Sec. 2 of the Charter — but that this infringement is justified by Sec. 1 of the Charter that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion — which runs 1367 numbered paragraphs in length — includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.
U.S. courts have likewise concluded that laws criminalizing polygamy are constitutional; I discuss that in this earlier post, and cite to two recent cases that have discussed the issue. I think it's not clear whether, given Lawrence v. Texas, a state may outlaw plural religious marriages where the parties don't try to make any legal claims based on those religious ceremonies; for more on that, see the majority and the dissent in State v. Holm (Utah 2006). But in any event, so far U.S. courts, like the Canadian court, have not accepted any such constitutional argument.
More content than the Wall Street Journal — and no paywall!
The Wall Street Journal recently published a round-robin dialogue on privacy featuring Jeff Jarvis, danah boyd, Chris Soghoian, and me. Our vibrant discussion was quite heavily compressed for publication, so two of the other participants have now published their contributions in full. Jeff Jarvis's is here, and danah boyd's is here. Publishing the full version on the web seems like good practice generally, so I'm following suit, with a few edits to avoid cross-referencing material that hasn't been put on the web. The Wall Street Journal's questions are in bold italics.
How much should people care about privacy?
That's like asking how much they should care about the weather. Some, for sure. If we don't, we're liable to end up deeply uncomfortable from time to time.
But let's not kid ourselves. Privacy is like the weather in another way, too. For all the complaining, no one is going to do much about it.
They can't. The price of storing and analyzing data is dropping exponentially; and keeping that data hidden is a hopeless task.
So, in the end, we will adjust. Privacy is the most adaptable of rights.
Sometimes our sense of what is private shrinks. The man who invented the right to privacy, Louis Brandeis, was appalled that ordinary newsmen could snap his picture and print it in the paper without so much as a by-your-leave. And most of us can sympathize, if we remember the shock of seeing ourselves in a photo, looking quite different than we imagined. But no one today thinks that photography is a privacy violation. We've adjusted to the new technology.
And sometimes our sense of privacy grows. Most of us would be deeply uncomfortable at the idea of having strangers sleeping in our homes, listening to our family conversations, and gossiping about us over the back fence. But Brandeis never gave the privacy risk posed by his servants a second thought.
It's tempting, in that first uncomfortable moment when new technology starts to shrink our old sense of privacy, to ask for new laws to protect us from change.
They won't. Sooner or later, the laws on the books will yield to Moore's law. But in the meantime, bad laws can do a lot of damage.
Maybe it made sense to tell the FBI in Hoover's day that its agents couldn't compile clippings files on Americans who weren't suspected of acting improperly. But by the time of 9/11, when any coed could assemble clips files on her blind dates — in seconds, for free, with the help of Google — did it really make sense for FBI agents to be the only people in the country barred from printing out name searches?
So, sure, we should care about privacy. But we should also care about dumb privacy laws whose cost we won't appreciate until it's too late.
What is the harm that can be inflicted by bad privacy laws? Will it prevent us from catching terrorists or drug cartels?
Bad privacy laws abound, but the harm they do is too often downplayed in the media.
Take the story of September 11 itself. As the attacks loomed, the secret court that approves national security wiretaps had plunged the FBI into turmoil — but over privacy, not terrorism. Perhaps reacting to charges that it was merely a rubber stamp, the secret court had begun aggressively protecting Americans' privacy — by imposing harsh, career-killing sanctions on an FBI agent who failed to observe the Wall between law enforcement and intelligence.
As described in Skating on Stilts, the court's harsh punishment was still reverberating when the FBI learned that two al Qaeda operatives had entered the US. Members of its massive Cole bombing task force begged for a chance to track them down. But no one was willing to risk the secret court's wrath by using a criminal task force to pursue intelligence leads.
And so we missed our last, best chance to stop the 9/11 attacks — thanks to the secret court's misplaced enthusiasm for a dubious privacy doctrine. That's what turned me from a moderate privacy supporter into a profound skeptic.
Worse, because the secret court has never been held to account for its fecklessness, it is reportedly still following the same path — imposing new and secret privacy restrictions on our intelligence agencies. And leaving us all at risk of becoming the next privacy victims.
You've said that privacy advocates have helped turn our computers into surveillance machines; what privacy laws are you referring to? And how should it have been prevented?
There are indeed privacy laws that make computer defense much more difficult. European laws protecting employee privacy make it harder to secure corporate networks, and U.S. privacy rules make it hard for the government to identify and warn Americans whose computers have been taken over by botnets. But the real problem is the way privacy groups have prevented the government from making policy changes in response to the growing danger of network attacks.
Take intrusion detection. Many corporate networks use technology that monitors networks to detect intrusions and alert administrators to threats. As long ago as the 1990s, the Clinton Administration proposed creating a Federal Intrusion Detection network, or FIDNet, that would do the same thing for civilian government networks. It didn't happen. FIDNet was condemned by privacy groups as "a monitoring system that threatens privacy and other civil liberties." Along with their allies in the press, privacy advocates made FIDNet so controversial that Congress killed it. When George W. Bush revisited the idea, it made even less progress. Only now, after a third President has raised the alarm about network attacks, are we beginning to roll out coordinated intrusion detection for the civilian arms of government. Of course we're a decade late; foreign governments have had ten years to steal all the information the privacy advocates now say they're worried about – delays caused in large part by the privacy advocates themselves.
If secret court orders protecting privacy led to 9/11, as you contend — isn't the answer to not have secret courts? Not that privacy is terrible?
Secrecy may well be cloaking dubious rulings by the secret court, just as it cloaked the court's enforcement of the Wall. But we can't expose those rulings without also exposing the highly classified intelligence operations the court is overseeing. To solve this kind of dilemma, the Congress's intelligence committees sometimes conduct classified investigations and release an unclassified summary of their findings. Maybe the value of such an investigation is one thing that privacy advocates and I (and the Wall Street Journal) can all agree on.
But the problem at its heart is not secrecy. It's the court's willingness to create novel privacy and civil liberties protections. That may sound like a good thing, but it cost us dearly in August 2001. We should consider that cost before we impose new privacy rules.
On Not Ignoring Unfavorable Precedent
Law students and lawyers — don't let this happen to you (from today's Gonzalez-Servin v. Ford Motor Co. (7th Cir.):
In ... Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009)[], we affirmed Judge Barker's transfer of a similar case [to the one being litigated here] to the courts of Argentina under the doctrine of forum non conveniens. The appellants in No. 11–1665 (the plaintiffs in the district court), the accident case, do not cite Abad in their opening brief, though the district court's decision in their case was issued in 2011 — long after Abad. In their response the defendants cite Abad repeatedly and state accurately that its circumstances were "nearly identical" to those of the present case. Yet in their reply brief the appellants still don't mention Abad — let alone try to distinguish it — and we take this to be an implicit concession that the circumstances of that case are indeed "nearly identical" to those of the present case.
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it....
The "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless." The attorney in the vehicular accident case, David S. "Mac" McKeand, is especially culpable, because he filed his opening brief as well as his reply brief after the Abad decision yet mentioned it in neither brief despite the heavy reliance that opposing counsel placed on it in their response brief.
Cities Pay for Occupations
During the first two months of the nationwide Occupy protests, the movement that is demanding more out of the wealthiest Americans cost local taxpayers at least $13 million in police overtime and other municipal services, according to a survey by The Associated Press.
The heaviest financial burden has fallen upon law enforcement agencies tasked with monitoring marches and evicting protesters from outdoor camps. And the steepest costs by far piled up in New York City and Oakland, Calif., where police clashed with protesters on several occasions.
The AP gathered figures from government agencies in 18 cities with active protests and focused on costs through Nov. 15, the day protesters were evicted from New York City's Zuccotti Park, where the protests began Sept. 17 before spreading nationwide. The survey did not attempt to tally the price of all protests but provides a glimpse of costs to cities large and small.
Broken down city by city, the numbers are more or less in line with the cost of policing major public events and emergencies. In Los Angeles, for example, the Michael Jackson memorial concert cost the city $1.4 million. And Atlanta spent several million dollars after a major snow and ice storm this year
ClimateGate Part Deux — Continued
The http://www.nytimes.com/2011/11/23/science/earth/new-trove-of-stolen-e-mails-from-climate-scientists-is-released.html?pagewanted=all on the new release of climate scientists' emails:
The new e-mails appeared remarkably similar to the ones released two years ago just ahead of a similar conference in Copenhagen. They involved the same scientists and many of the same issues, and some of them carried a similar tone: catty remarks by the scientists, often about papers written by others in the field. . . .
In one of the e-mails, Raymond S. Bradley, director of the Climate System Research Center at the University of Massachusetts, Amherst, criticized a paper that Dr. [Michael] Mann wrote with the climate scientist Phil Jones, which used tree rings and similar markers to find that today's climatic warming had no precedent in recent natural history. Dr. Bradley, who has often collaborated with Dr. Mann, wrote that the 2003 paper "was truly pathetic and should never have been published."
Dr. Bradley confirmed in an interview that the e-mail was his, but said his comment had no bearing on whether global warming was really happening. "I did not like that paper at all, and I stand by that, and I am sure that I told Mike that" at the time, he said. But he added that a disagreement over a single paper had little to do with the overall validity of climate science. "There is no doubt we have a big problem with human-induced warming," Dr. Bradley said. "Mike's paper has no bearing on the fundamental physics of the problem that we are facing."
Some of the other e-mails involved comments about problems with the computer programs used to forecast future climate, known as climate models. For instance, a cryptic e-mail apparently sent by Dr. Jones, a researcher at East Anglia, said, "Basic problem is that all models are wrong — not got enough middle and low level clouds."
Gavin A. Schmidt, a climate modeler at NASA, said he found such exchanges unremarkable. He noted that difficulties in modeling were widely acknowledged and disclosed in the literature. Indeed, such problems are often discussed at scientific meetings in front of hundreds of people.
Roger Pielke also comments here, noting that the new e-mails confirm the politicization of decisions about what papers to cite (or omit) from the 2007 IPCC report.
As with the first ClimateGate release, I have yet to see anything in these e-mails that disproves, or even seriously undermines, the basic claim that human emissions of greenhouse gases have contributed to a gradual warming of the climate and will continue to do so in the future. They do, however, further confirm that "mainstream" climate scientists have contributed to the politicization of climate science and allowed political concerns to influence scientific judgments, exaggerating the reliability of climatic projections and downplaying scientific findings that undermine the claim that climate change presents an apocalyptic threat.
Here's a list of VC posts that mention ClimateGate. For an overview of my views, see here and here.
60s sitcom themes: The hidden alien. The strange family that doesn't know it is strange.
During the early and mid-1960s, a typical theme of television situation comedies was a character who is some way was different from everyone else, and whose difference (or whose very existence) needed to be concealed from almost everyone by the show's protagonist. To wit:
Mister Ed (1961–66). Mister Ed is a talking horse who belongs to a human named Wilbur, and will speak only to him. Wilbur attempts to conceal Mr. Ed's ability from the neighbors.
McHale's Navy (1962–66). In the South Pacific during World War II, PT boat Lt. Commander McHale and the crew of PT-73 work hard at having fun, to the dismay of Captain Binghamton. Concealed in their barracks is a Japanese prisoner of war named "Fuji," who gratefully serves as their houseboy. Keeping Fuji hidden from the American officers is the subject of several episodes, but it is not as central to the show as are the secrets in the other shows on this list.
My Favorite Martian (1963–66). After a Martian scientist's spaceship crashes, Tim O'Hara rescues him. Tim invites the Martian (whose real name is Exigius 12½) to live with him, and passes him off as Tim's "Uncle Martin."
Bewitched (1964–72). Samantha is a beautiful witch who is married to advertising executive Darrin Stephens. They live in the suburbs, and often face challenges trying to conceal Samantha's powers from the nosy neighbors and Darrin's boss.
My Mother the Car (1965–66). David Crabtree's deceased mother is reincarnated in a 1928 luxury automobile. She speaks only to him, through the car radio. He must conceal the car's secret from the world, especially Captain Manzini, who is determined to acquire the antique.
I Dream of Jeannie (1965–70). Jeannie is a beautiful 2,000 year old genie who lives with astronaut Tony Nelson. Tony and his best friend Roger must conceal Jeannie's existence from everyone else, especially the commanding officers at NASA.
Another theme of some sitcoms of the period is the family of freaks who do not know that they are freaks:
The Beverly Hillbillies (1962–71). After the Clampetts accidentally strike it rich by discovering oil on the Ozark property, patriarch Jed moves them to Beverly Hills. They retain their rural dress and customs, and seem to have little or no idea how aberrant they are in urban California. Their innocent good nature keeps them (except for the half-witted skirt-chaser Jethro) out of trouble most of the time.
The Munsters (1964–66). The father looks like Frankenstein, his father-in-law is a vampire, and so on. Living with them is their niece Marilyn, who is an ordinary human college student, and whom the rest of the family considers to be a freak, but they are very nice to her. Marilyn apparently is unaware that the Munsters are different from everyone else.
The Addams Family (1964–66). A family of wealthy eccentrics with paranormal abilities and a strong taste for the macabre enjoys life in their mansion. Again, they have no clue how bizarre they are.
So in 1965–66, when there are only three national networks producing TV series, we have in a single television season five shows built around the concealment of character with a unique trait. (Or six, if you include the McHales's Navy subplot), and three shows about extremely strange families who think they are normal.
So my question to the commenters is "Why?" Were these shows an unintentional avant garde, extolling the pleasures of non-conformity and the virtue of tolerance to Middle America? Except for "My Mother the Car," all the shows were at least moderately successful for a while, and Beverly Hillbillies and Bewitched garnered top ratings. So was the American public subconsciously looking for validation for non-conformity? Or is there some other explanation?
Hank Greenberg Challenges Constitutionality of AIG Takeover
Former AIG CEO Hank Greenberg is suing the federal government challenging the constitutionality of the AIG takeover. From the WSJ:
Mr. Greenberg's lawyers on Monday sued the U.S. and the Federal Reserve Bank of New York on behalf of Starr International Co. and other AIG shareholders. The lawsuits accused the Treasury Department and New York Fed of wrongly taking control of the insurer and using it as a vehicle to funnel tens of billions of dollars to AIG's trading partners, which included large U.S. and European banks.
The suits allege that by taking a nearly 80% stake in AIG in September 2008 when it agreed to lend the insurer up to $85 billion, the government took valuable property from Starr and other AIG shareholders in violation of the Fifth Amendment, which says private property can't be taken for "public use, without just compensation."
Starr is seeking damages for itself and other shareholders of at least $25 billion. AIG is listed as a nominal defendant in the suits, which also seek damages for the company. A spokesman for the company declined to comment.
More coverage from the NYT and Reuters.
November 22, 2011
A Pronouncing Dictionary of the Supreme Court of the United States
Gene Fidell (Yale Law School) and some of his students are putting together an article tentatively titled A Pronouncing Dictionary of the Supreme Court of the United States, which will basically help people know the standard ways of pronouncing Supreme Court case names (such as City of Boerne v. Flores and Gentile v. State Bar of Nevada). They have a list of cases to include, but if you have some suggestions, please post them in the comments. The requirements, of course, are that (1) it's not obvious what the standard pronunciation is, and (2) the case comes up often enough to make it worth knowing the standard pronunciation.
I should note, of course, that the query isn't about the right pronunciation in some etymological sense; and even the party's own pronunciation of his own name may not be relevant in some cases, especially if the case is old enough. Thus, for instance, even if I learned that Schenck of Schenck v. United States (1919) pronounced his name "Skenk," I'd still pronounce the case "Shenk," since that seems to be the standard pronunciation among lawyers who know the case.
But often this standard pronunciation isn't obvious. Thus, in my experience the "Boerne" in City of Boerne v. Flores is pronounced "Bernie" by those knowledgeable in the field, perhaps because someone did take the trouble to figure out that this is how the city name is pronounced by its residents. And it is this standard pronunciation (or, in some cases, perhaps several standard pronunciations, as with "either" and "apricot") that I'm asking about.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
