Eugene Volokh's Blog, page 2669

Fox News and WSJ Columns on the Scope of the Computer Fraud and Abuse Act

(Orin Kerr)

The scope of the CFAA has been drawing some significant press attention today. Eric Felten takes on the issue in the Wall Street Journal; Judson Berger does so over at Fox News. I'll be on NPR's All Things Considered this weekend discussing the same issue.

Larry Lessig and Tyler Cowen on the Future of the "Occupy Wall Street" Movement

(Orin Kerr)

An interesting segment of the Diane Rehm show, which you can listen to at this link.

Bleg: Recommended US history book for Con Law I?

(David Kopel)

Next semester I will teaching the Constitutional Law I class at Denver University. It's the standard class that almost all 2d or 3d semester law students must take at all law schools:

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court's power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President's war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I'll be using Randy Barnett's textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I'd strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

Will the Necessary & Proper clause save Obamacare? Not if the Court follows McCulloch v. Maryland

(David Kopel)

Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online.

In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and "less worthy" (in the language of the time) than the principal power. So if A delegates to B the power to manage A's farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an "incident" of the power to manage a farm. It is a power that is as great as the power to manage the farm.

Thus, the first half of Chief Justice Marshall's opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an "incident" of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett's Constitutional Law: Cases in Context.

So is the power to order people to engage in commerce with certain corporations "incidental" to the enumerated power "to regulate Commerce . . .  among the several States"? Lawson and I argue that the power to compel intrastate commerce is of at least equal "dignity" as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a "necessary and proper" to the exercise of the power to regulate interstate commerce.

Further, the word "proper" affirms the agency/fiduciary law rule that an agent  must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke's Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff's house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not "proper," because the monopolist was benefited to the detriment of everyone else.

In 1787, a consumer could at least choose not to buy the monopolist's product.  "The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as 'improper,' then far more 'improper' is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void."

Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland's accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.

Ninth Circuit Now Free to Decide the Merits of the Constitutional Challenge to Prop. 8

(Eugene Volokh)

The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state's interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required "standing" to appeal the trial court's decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.

Bleg re Rules re Rights Offerings and Shares Held Short

(David Bernstein)

Having a hard time getting a straight answer on this one. Let's say you hold 1,000 shares of a stock short. The company announces that it's doing a rights offering, and for every share a holder owns, you can buy a newly issued share directly from the company for 90% of the closing price on December 31st. You hold the shares short through the ex-date of the rights offering. The underlying owner of the shares you've borrowed decides to exercise his rights, and requests 1,000 new shares at 90% of the December 31 price. Who is responsible for providing these new shares to the owner, the company that issued the rights, or you? Please only respond if you have real expertise on this.

UPDATE: A little more research seems to suggest that the short borrower is obligated to deliver the rights to the owner, but then the owner gets to exercise, or sell, the rights as he see fit. So the short borrower is on the hook, at most, for the value of the rights. Correct?

Steven Brint Reviews New Books on Higher Education

(Kenneth Anderson)

Steven Brint is a sociologist at the University of California, Riverside, and the author of a book, In an Age of Experts, I once reviewed in the Columbia Law Review, along with books by Anthony Kronman and Christopher Lasch (mine was a long review essay on the New Class and lawyers and the legal profession).  He has a terrific review essay on four new books on higher education (h/t Insta):

The American education gospel is built around four core beliefs. First, it teaches that access to higher levels of education should be available to everyone, regardless of their background or previous academic performance. Every educational sinner should have a path to redemption (most of these paths now run through the community colleges). Second, the gospel teaches that opportunity for a better life is the goal of everyone and that education is the primary — and perhaps the only — road to opportunity. Third, it teaches that the country can solve its social problems — drugs, crime, poverty, and the rest — by providing more education to the poor. Education instills the knowledge, discipline, and the habits of life that lead to personal renewal and social mobility. And, finally, it teaches that higher levels of education for all will reduce social inequalities, as they will put everyone on a more equal footing. No wonder President Obama and Bill Gates want the country to double its college graduation rate over the next 10 years.

The advance of the education gospel has been shadowed from the beginning by critics who claim that education, despite our best efforts, remains a bastion of privilege. For these critics, it is not that the educational gospel is wrong (a truly democratic, meritocratic school system would, in principle, be a good thing); it is that the benefits of education have not yet spread evenly to every corner of American society, and that the trend toward educational equality may be heading in the wrong direction. They decry the fact that schools in poor communities have become dropout factories and that only the wealthy can afford the private preparatory schools that are the primary feeders to prestigious private colleges. The Higher Education Establishment recognizes critics like these as family. They accept the core beliefs of the education gospel and are impatient only with its slow and incomplete adoption.

Other heresies are more radical, and thus more disturbing to settled beliefs about the power of education. One currently growing in popularity we might call "the new restrictionism." According to the new restrictionists, such as the economists Philip Babcock and Mindy Marks, co-authors of the 2008 paper "Leisure College USA: The Decline in Student Study Time," access to higher education may have gone too far. Our colleges and universities are full to the brim with students who do not really belong there, who are unprepared for college and uninterested in breaking a mental sweat.

The essay is a lengthy one — and well worth reading.  Brint is a deeply attentive sociologist, and he is able to unite social theory and empirical studies to good effect.  (It also,  I should add, appears in a new online book review, the Los Angeles Review of Books — an effort, which I applaud, to reintroduce the traditional long form review essay and traditional standalone book review.)

The Less Deadly Catch

(Jonathan H. Adler)

The Discovery Channel's "Deadliest Catch" reality show chronicles the exploits of several Alaskan king crab fishing vessels and their crews operating in the Bering Sea.  The title for the show derives from the fact that Alaskan king crab fishing is one of the deadliest jobs around.  If the environmental conditions weren't perilous enough, the traditional "derby" management of the fishery encouraged boats and their crews to fish fast and furiously so they could catch as much as possible before time ran out.  At least that's how it was when the show began.

After the first season, catch shares were adopted in the Alaskan king crab fishery, eliminating the race-to-fish and increasing fishery safety as a result.  As ship captain Scott Campbell explains:

Since August 2005, we fish under a much better system called "catch shares," which are also in place in some other fisheries. Now regulators divide up how much crab the fleet can catch among individual fishermen, as opposed to collectively, so we can fish at our own pace during significantly longer seasons. Tighter Coast Guard requirements have also improved safety.

I believe catch shares have saved lives in Alaska because crabbing deaths are much less common now.

Catch shares have not only improved safety, they have also created incentives for greater sustainability.

Catch shares have brought other benefits. Now we have a stake in protecting crab populations for the future. Because we aren't in such a race against the clock, we're able to get more young and female crabs we don't keep back into the ocean unharmed. When we find an area has too many juvenile crabs, there's time to go somewhere else instead.

Fishermen are earning more and the jobs now are more stable because we have much more time to catch crab. We can plan better because we know in advance how much crab we're allowed to catch.

Further evidence that property-based resource management systems are superior than traditional regulatory alternatives.

Me and Kim Kardashian

(John Elwood)

Because of the press of business at my day job, I've had less than usual worth saying recently.  In fact, I haven't posted in months.

But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters.  An amicus brief I did for the Cato Institute, Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, and TechFreedom in the upcoming FCC v. Fox Television Stations was mentioned in the Hollywood Reporter yesterday in its Hollywood Docket feature that included a story on Kim Kardashian. 

The brief made paragraphs 1 and 2 of the article; Kim wasn't mentioned until paragraph 6, and yet somehow she is the one who got the photo that ran in the article.  Harrumph.

House passes interstate handgun carry reciprocity

(David Kopel)

By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress's constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here's short podcast on the subject, with Cato.

HT to Shall Not Be Infringed for coverage of the day's voting, in which all hostile amendments were defeated.